Law Offices of Gabriel H. Avina

Los Angeles Personal Injury and Criminal Defense Lawyers

FREE PHONE CONSULTATION! CALL (323) 299-1664 ANYTIME!

Wednesday, December 25, 2013

Merry Christmas!









Thursday, August 15, 2013

Our First Amendment Right to Record Police Officers

In the last couple years, issues of whether individuals have a constitutional right record police officers, and whether the police may prevent such recordings or later destroy recordings, has become increasingly prominent.

The Department of Justice (DOJ) Civil Rights Division has affirmed the First, Fourth, and Fourteenth  Amendment rights of citizens to record police officers in the public discharge of their duties. In an opinion letter issued on May 14, 2012  in regard to the ongoing litigation in Sharp v.  Baltimore City Police Department, the DOJ stated that the individual right to record officers who are publicly executing their duties is a First Amendment right. Relying on Glik v. Cunniffe, the DOJ letter states “Recording governmental officers engaged in public duties is a form of speech through which private individuals may gather and disseminate information of public concern, including the conduct of law enforcement officers.” (DOJ letter, page 2.)

Also in this letter, the DOJ and set forth recommendations for police policies to give law enforcement officers clear guidelines to allow them to perform their duties without violating this right. According to the DOJ opinion letter, with regard to the recordings of private citizens, police policies should:

  • Affirmatively state that individuals have a First Amendment right to record police officers; 
  • Include examples of the places where individuals can lawfully record police activity, for example individuals not only have the right to record in  public parks and public spaces (like sidewalks, streets and locations of public protests,) but also the right to record on private property where an individual has  a right to be present (including, but not limited to his or her home);
  • Include examples of the type of police activity that may be recorded;
  • Advise officers that they "may not  threaten, intimidate, or otherwise discourage an individual from recording police officer enforcement activity or intentionally block or obstruct cameras or recording devices" (DOJ letter, page 5);
  • Instruct officers that they must not search and seize a camera or recording device without a warrant, except  in limited circumstances (DOJ letter, page 5);
  • Instruct officers that even if a warrantless seizure of a camera or recording device is permitted (because there is probable cause to believe that the device holds a contraband or evidence of a crime, there is a exigency or exception to the warrant requirement, and seizure is for a limited time period), there can be no search of the recording device without a warrant (DOJ letter, page 9).
  • Prohibit officers from "destroying recording devices or cameras and deleting recordings or photographs under any circumstances"(DOJ letter, page 5);
  • Define and provide examples for the narrow limitations of the First Amendment right to record: "A person may record public police activity unless the person engaged in actions that jeopardize the safety of the officer, the suspect, of others in the vicinity, violate the law, or incite others to violate the law" (DOJ letter, page 6).
  • Include other provisions to clarify the role of the officer's supervisor, the guidelines for consent to searches, seizures under exigent circumstances, among other things.

Read the rest of the May 14, 2012 DOJ opinion letter from Sharp v.  Baltimore City Police Department for more information. This is an area of law that will continue to develop.


In addition, here is some background information on the litigation Sharp v.  Baltimore City Police Department. On May 15, 2010, Christopher Sharp recorded his friends' violent police encounter at the Preakness with his cellphone, and the Baltimore police seized and searched the phone. Christopher Sharp filed against a complaint the Baltimore Police Department, and this litigation is ongoing.


If you need legal representation call (323)299-1664 or email gabriel@avinalaw.com to set up a FREE CONSULTATION with Los Angeles attorney Gabriel H. Avina.

*For more information see our Criminal Defense page.

Thursday, June 6, 2013

New Law for Commercial Drivers: Traffic Violations in Your Personal Vehicle and General Commercial Driving Information


Traffic Violations in Your Personal Vehicle 

A new law now allows CDL holders who are charged with a traffic violation in their personal vehicle (on or after January 1, 2013) to complete a course of instruction at a licensed traffic violator school to avoid a violation point count on their driving record.  This applies to California CDL holders that are charged for violations while operating a vehicle that requires only a class C or M license. 



Here it is on record.: 
Vehicle Code section 42005 (b) To the extent the court is in conformance with Title 49 of the Code of Federal Regulations, and except as otherwise provided in this section, the court may, after deposit of the fee under Section 42007 or bail, order or permit a person who holds a class A, class B, or commercial class C driver’s license, who pleads guilty or no contest or is convicted of a traffic offense, to complete a course of instruction at a licensed traffic violator school if the person was operating a vehicle requiring only a class C license, or a class M license.  The court may not order that the record of conviction be kept confidential.  However, the conviction shall not be added to a violation point count for purposes of determining whether a driver is presumed to be a negligent operator under Section 12810.5.

IF you have been charged for a traffic violation in your personal vehicle anytime on or before December 31, 2012 the old law applies.:

The Motor Carrier Safety Improvement Act (MCSIA) of 1999 requires a CDL holder to be disqualified from operating a commercial motor vehicle if the CDL holder has been convicted of certain types of moving violations in their personal vehicle. 
If your privilege to operate your personal vehicle is revoked, cancelled, or suspended:
  • Due to violations of traffic control laws (other than parking violations) you will also lose your CDL driving privileges.
  • Due to alcohol, a controlled substance, or felony violations, you will lose your CDL for one year. If you are convicted of a second violation in your personal vehicle or commercial motor vehicle, you will lose your CDL for life.
  • You may not obtain a "hardship" license to operate a commercial motor vehicle.





General California Commercial Driving Information
Operating commercial vehicles require special skills and a professional approach.  Formal training is the most reliable way to learn the many special skills required for safely driving a large commercial vehicle and becoming a professional driver in the trucking industry.  


A California Commercial Driver's License (CDL) is required to operate a commercial vehicle if you are a California resident.  In order to receive a California CDL you must successfully complete the commercial driving test administered by the California Commercial Motor Vehicle Safety Program.  (Pursuant to Federal Motor Carrier Safety Administration regulations §§391.11(b)(2) and 383.133(c)(5) this test is only administered in English.)  In addition to passing the required driver's test you must also qualify under the specifications for endorsement.



Here are general rules that apply to you once you have earned a California CDL and are operating a commercial motor vehicle.:

You will lose your CDL for at least one year for a first offense for:

  • Driving a CMV if your BAC is .04% or higher.
  • Driving a CMV under the influence of alcohol.
  • Refusing to undergo blood alcohol testing.
  • Driving a CMV while under the influence of a controlled substance.
  • Leaving the scene of a collision involving a CMV.
  • Committing a felony involving the use of a CMV.
  • Driving a CMV when your CDL is suspended/revoked.
  • Causing a fatality through negligent operation of a CMV.
You will lose your CDL for at least three years if the offense occurs while you are operating a CMV that is placarded for hazardous materials.
You will lose your CDL for life for a second offense.
You will lose your CDL for life if you use a CMV to commit a felony involving controlled substances.
You will be put out-of-service for 24 hours if you have any detectable amount of alcohol under .04%.

Serious traffic violations include:
  • Excessive speeding (15 mph or more above the posted speed limit).
  • Reckless driving.
  • Improper or erratic lane changes.
  • Following a vehicle too closely.
  • Traffic offenses committed in a CMV in connection with fatal traffic collisions.
  • Driving a CMV without obtaining a CDL.
  • Having a CDL in the driver's possession, and driving a CMV without the proper class of CDL and/or endorsements.
You will lose your CDL for at least:
  • 60 days if you commit two serious traffic violations within a three-year period involving a CMV.
  • 120 days for three or more serious traffic violations within a three-year period involving a CMV.
Violation of Out-of-Service Orders
You will lose your CDL for at least:
  • 90 days for your first conviction of an out-of-service order.
  • One year for two convictions of an out-of-service order in a ten-year period.
  • Three years for three or more convictions of an out-of-service order in a ten-year period.
Violation of Hands Free or Texting Law
You will lose your CDL:
  • For at least 60 days for your second violation of the cell phone hands free or texting law, within a 3 year period, and receive one point on your driving record.
  • For at least 120 days for your third and subsequent violations of the cell phone hands free or texting law, within a 3 year period, and receive one point on your driving record.
Railroad-Highway Grade Crossing Violations
You will lose your CDL for at least:
  • 60 days for your first conviction.
  • 120 days for your second conviction within a three-year period.
  • One year for your third conviction within a three-year period.
These violations include violation of a federal, state, or local law or regulation pertaining to one of the following six offenses at a railroad-highway grade crossing for:
  • Drivers who are not required to always stop, failing to stop before reaching the crossing if the tracks are not clear.
  • Drivers who are not required to always stop, failing to slow down and check that the tracks are clear of an approaching train.
  • Drivers who are always required to stop, failing to stop before driving onto the crossing
  • All drivers failing to have sufficient space to drive completely through the crossing without stopping.
  • All drivers failing to obey a traffic control device or the directions of an enforcement official at the crossing.
  • All drivers failing to negotiate a crossing because of insufficient undercarriage clearance.
Hazardous Materials Endorsement Background Check and Disqualifications
If you require a hazardous materials endorsement you will be required to submit your finger-prints and be subject to a background check.
You will be denied or you will lose your hazardous materials endorsement if you:
  • Are not a lawful permanent resident of the United States.
  • Renounce your United States citizenship.
  • Are wanted or under indictment for certain felonies.
  • Have a conviction in a military or civilian court for certain felonies.
  • Have been adjudicated as a mental defective or committed to a mental institution.
  • Are considered to pose a security threat as determined by the Transportation Security Administration (TSA).
Convictions that occur while you are driving a commercial vehicle or as a holder of a commercial driver license are retained on your driving record as listed below:
  • Major violations and disqualification actions, 55 years.
  • Out-of-service violations and disqualification actions, 15 years.
  • Collisions, serious violations and disqualification actions, 10 years.
  • Railroad grade crossings and disqualification actions, 4 years.
  • Minor convictions, 3 years.
A traffic conviction for driving unsafely counts as one point.  Any collision you contributed to or were responsible or at fault for, is normally counted as one point.  If you are convicted of reckless driving, driving under the influence of alcohol and/or drugs, or of a hit-and-run, you are charged two points.
If you get too many points, you lose your privilege to drive.  You are considered a negligent operator of a commercial motor vehicle when your driving record shows the following point counts:
4 points in 12 months
6 points in 24 months
8 points in 36 months
You may be entitled to a higher point count (6, 8, or 10 points) if you request and appear for a hearing and if 4, 6, or 8 points were not obtained in a Class C vehicle.
A violation received in a commercial vehicle carries one and one-half times the point count.  A Class A or B driver who does not have a special certificate or an endorsement may be allowed two additional points before being considered a negligent operator.
Convictions reported by other states are added to your driving record and may result in license sanctions.  If you have an out-of-state CDL, any conviction while operating in California will be reported to your home state.
NOTE: Commercial drivers may not attend a traffic violator school to have an offense dismissed for any traffic violation (CVC §42005(c)).




Links that provide additional information and all information featured in this post.:
-New law for violations committed in personal vehicle (effective as of January 1, 2013)


Friday, May 17, 2013

California Traffic Violation Point System Break Down

Los Angeles lawyer Gabriel H. Avina has been fighting traffic tickets for over 10 years and always tells his clients that dealing with most traffic violations is something most people can do without an attorney's help. However, in some circumstances it may be important for you to seek the representation of an attorney, such as in a situation where you will be out of town and cannot be present in court yourself, or in a case where there may be serious criminal charges, such as with a DUI.


Perhaps the most common reason to hire a lawyer to deal with a traffic violation is where you may face having multiple points on you record. Multiple points on your driving record may designate you as a negligent operator of a vehicle and could result in the DMV revoking or suspending your driver's license, if you amass a certain number of points over a period of time. Under California Vehicle Code Section 12810.5(a), the DMV will presume a driver is negligent if he or she adds to his or her record:
  • 4 or more points in 12 months
  • 6 or more points in 24 months
  • 8 or more points in 36 months
Some common traffic violations do NOT result in any additional points on your driving record.
However, other common traffic violations do result in points on your driving record, so be aware and keep track of these. Check the DMV website break down of the California point system for negligent operator counts.


Call (323)299-1664 or email gabriel@avinalaw.com to set up a free consultation with Los Angeles personal injury and criminal defense attorney Gabriel H. Avina.


*For more information see our Criminal Defense page.

Wednesday, April 17, 2013

Los Angeles Criminal Defense Attorney

Gabriel H. Avina is an experienced and aggressive criminal defense attorney, who can help you handle a misdemeanor or felony charge. In his years as a criminal defense lawyer, Gabriel has handled many different types of criminal cases, from simple traffic violations and traffic trials to serious DUI charges, as well as criminal charges of graffiti and vandalism, assault and battery, or drugs and weapons offenses and more.  

Gabriel can help you understand how California criminal courts work and can help you understand the process of a criminal case in California.

Whether you are already charged with a crime or are concerned that you may soon be charged and prosecuted, Gabriel can provide a criminal defense strategy that can make a huge difference in the outcome and the lasting consequences of your criminal case. Not only will he fight for you, but he knows how to get results, in any of the following types of cases:

Driving under the Influence (DUI) - California Vehicle Code Section 23152
Suspended License - California Vehicle Code Section 14601
Hit and Run - California Vehicle Code Section 20001
Traffic violations - California Vehicle Code
Vandalism - California Penal Code Sections 594-625c
Theft - California Penal Code Sections 484-502.9, also see Sections 466-469
Embezzlement - California Penal Code Sections 503 -515
Forgery and Counterfeiting - California Penal Code Sections 470 -483.5
Robbery - California Penal Code Sections 211-215
Burglary - California Penal Code Sections 458-464, also see Sections 466-469
Assault - California Penal Code Sections 240-248, especially 240-242
Battery - California Penal Code Sections 240-248, especially 243-244
Domestic violence - California Penal Code 240-248 (above), for spouses Sections 273.8 - 273.88
Sex Crimes - California Penal Code Sections 261-269, also see Section 243.4 in 240-248 (above)
Resisting arrest - California Penal Code Section 148a1
Evading the police - California Vehicle Code Section 2800.1
Drug offenses - California Health and Safety Code Sections 11350 -11356.5
Weapon offenses - California Penal Code Sections 17500 - 17515, also Sections 12001 - 12022.95
Petty Theft with a Prior - California Penal Code Section 666
Three Strikes - California Penal Code Section 667
Probation violation - California Penal Code Sections 1203-1203h



If you have been arrested or if you are facing criminal charges, Gabriel is ready and willing to consult you on your criminal case. Call (323)299-1664 or email gabriel@avinalaw.com to set up a FREE CONSULTATION with Los Angeles criminal defense attorney Gabriel H. Avina.

Friday, April 12, 2013

California Traffic Violation Point System Break Down

Los Angeles lawyer Gabriel H. Avina has been fighting traffic tickets for over 10 years and always tells his clients that dealing with most traffic violations is something most people can do without an attorney's help. However, in some circumstances it may be important for you to seek the representation of an attorney, such as in a situation where you will be out of town and cannot be present in court yourself, or in a case where there may be serious criminal charges, such as with a DUI.


Perhaps the most common reason to hire a lawyer to deal with a traffic violation is where you may face having multiple points on you record. Multiple points on your driving record may designate you as a negligent operator of a vehicle and could result in the DMV revoking or suspending your driver's license, if you amass a certain number of points over a period of time. Under California Vehicle Code Section 12810.5(a), the DMV will presume a driver is negligent if he or she adds to his or her record:
  • 4 or more points in 12 months
  • 6 or more points in 24 months
  • 8 or more points in 36 months
Some common traffic violations do NOT result in any additional points on your driving record.
However, other common traffic violations do result in points on your driving record, so be aware and keep track of these. Check the DMV website break down of the California point system for negligent operator counts.


Call (323)299-1664 or email gabriel@avinalaw.com to set up a free consultation with Los Angeles personal injury and criminal defense attorney Gabriel H. Avina.


*For more information see our Criminal Defense page.

Tuesday, April 9, 2013

Resisting Arrest & Public Intoxication Charges Dismissed!

On the eve of a four day jury trial, I finally was able to get the City Attorney for Santa Monica to completely dismiss the entire case against my client at the LAX Courthouse today. 

Most attorneys would have convinced their client to accept the offer from the City Attorney, which was plead guilty to only one count of Resisting Arrest with no jail time, no probation and no fine.  It's a good offer.  I advised my client to not take it. 

Why? 

Because he was innocent.  And as much as I tell prosecutors that my clients are innocent, I'm still always surprised by their cynical chuckles. 

During the negotiations, it took me to actually explain my entire trial strategy to the City Attorney to get the proposed offer, which caused him to actually travel to the location of the incident, and to see for himself that the Santa Monica Police Department officer was lying in his police report. 

Of course the City Attorney didn't explicitly acknowledge this fact.  "There seems to be several discrepancies in the report," he said.  "Discrepancies?" Pah.  More like Constitutional violations.  After informing the City Attorney that my client would reject the offer, the City Attorney then stated he would dismiss the entire case instead.

In other words, my client was right.  He was innocent.  And after several motions and 3 months of legal work, his case was completely dismissed. 

This is what lawyers do.  We fight.  When other people laugh at your innocence, good lawyers prove you right.

If you need a lawyer, call me.  I don't chuckle if you say that you're innocent.  I listen.  Then I fight. 

Call 323-299-1664 for a FREE CONSULTATION!

Wednesday, March 13, 2013

Judge Sandra Thompson Dismissed 2nd DUI because 4th Amendment Violation!

Today, Judge Sandra Thompson of the the Torrance Courthouse granted a 1538.5 Motion to Dismiss for a police officer's unreasonable search and seizure.  By doing this, Judge Thompson confirmed all of our rights against overzealous police officers who think they can pull you over just because you drift in your own lane.   She affirmed that you do in fact have a reasonable expectation of privacy. 

Specifically, my client was not speeding, and after spending several months attempting to obtain the video footage from the patrol car, I argued a motion that displayed how the only reason that the officer pulled over my client was because of a slight drifting within his own lane.  Guess what?  This is not illegal.  This is not a basis to stop a driver. 

Unfortunately, most lawyers won't file and argue a 1538.5 Motion to Dismiss as part of their normal representation.  I do.  Some lawyers might even charge a lot more money for this type of motion.  I don't.  This is why you should call Law Offices of Gabriel H. Avina before deciding which lawyer to represent you. 

The case law that I argued was People v. Perez (1985) 175 CA3d Supp. 8, 221 CR 776.  Perez concluded that in such cases where no traffic laws have been violated, a stop will be justified in California only where the weaving within the lane is “pronounced” and occurs over a substantial distance.

Tuesday, March 5, 2013

Gabriel H. Avina's 10 Tips for Dealing with a Personal Injury Traffic Accident

If you are in any kind of traffic accident (including a car accident, truck accident, motorcycle accident, or any other type of auto accident) and you may have a personal injury claim, then there are a few important things you should keep in mind. Los Angeles lawyer Gabriel H. Avina suggests that from the moment the accident occurs you should:
  1. Stop and exchange information with other parties involved in the accident. Stopping at the scene of an accident in which you were involved is required by law under California Vehicle Code Section 20001. At this time you should get driver license, contact, and insurance information from the other parties involved.
  2. Get the contact information of any witnesses if possible. If you believe that liability for the accident will be an issue, and especially in the case of a personal injury, it can be very important to have witnesses to the accident.
  3. See a doctor for treatment. Pay attention to how you feel physically immediately after the accident, the next day, the next week, and even over the next months. Sometimes injuries that seem minor at first can develop into more serious conditions. See a doctor for any injuries or health concerns.
  4. Save any documentation related to the accident. This includes any information you may have, such as contact or other information from the other parties involved, a police report, any information from witnesses, photographs of damages to your vehicle, photographs of injuries, estimates or bills from repairs shops, or doctor's reports or bills.
  5. Consult attorneys for advice. If you have injuries that require medical care, then it may be in your best interest to hire a lawyer to help you recover medical costs. Although automobile insurance companies provide good liability coverage and adequate compensation for property damage in most cases, this is not often the case with physical injuries. Talking to different attorneys about your case can help you decide whether you want to move forward with a personal injury case. Many attorneys provide free consultations.
  6. Don't feel too rushed to hire an attorney. While there are time limitations on when you can enforce your rights, and it is important to bring your claim before these time limitations expire (see # 9 below), it is also very important that you do not to feel too rushed in making a decision.
  7. Hire an attorney who you feel comfortable with. It is important that you hire an attorney who makes you feel comfortable. This means that you should have a lawyer who you feel comfortable talking to, who listens to your concerns, and who provides you with legal explanations that you understand. The California State Bar provides a guide to help you choose an attorney.
  8. Keep in mind that attorneys usually take personal injury cases on a contingency agreement. A contingency fee agreement means that your attorney will be paid a percentage of what the award is if you win in court, or what the settlement is if the matter settles out of court. However, if you lose your case, then your attorney will receive no fee. (But also keep in mind, that regardless of your attorney's compensation, there also may be fees to be paid to the court and possibly other litigation expenses. This is an important conversation to have with an attorney who you are considering hiring.)
  9. Keep in mind the relevant statutes of limitations for your claim. While you have time to decide whether to pursue your personal injury claim, it is also important not to forget about the time limitations imposed by law, known as statutes of limitations. If you do not bring your personal injury case within these deadlines, you can miss your opportunity for compensation. Relevant statues of limitations in California that may apply to personal injury claims include:
    • 2 years from the date of the injury for most personal injury claims under California Code of Civil Procedure Section 335.1
    • 6 months for a personal injury claims against the government under California Government Code Section 911.2
  10. Have patience. If you do decide to hire a lawyer to help you with your personal injury claim, this can be a long process. The exact time that a case may take to resolve depends on the specific facts of the case and how the opposing party responds to the claim. Depending on how the case progresses, the lifespan of a personal injury claim may include: investigation or gathering information for your claim, negotiating with insurance, filing a complaint, settlement conferences, pretrial motions, preparing for trial, and enforcing a favorable judgment.
Call (323)299-1664 or email gabriel@avinalaw.com to set up a FREE CONSULTATION with Los Angeles personal injury lawyer Gabriel H. Avina.

*For more information see our Personal Injury page.

Friday, March 1, 2013

Motorcycle Accidents are Different Than Car Accidents!

Los Angeles Motorcycle Accident Personal Injury Attorney



Motorcycle accidents are different from most personal injury accidents. Not only are motorcycle accident causes and liability sometimes different than other types of accidents, but also the type and extent of property damage and personal injury that result from motorcycle accidents differ from other types of accidents. Property damage to motorcycles and personal injury to the rider can often be more extensive than other types of accidents.


If you have been injured in a traffic accident, legal representation can help you recover
adequate compensation for your injuries. If you have been injured in a motorcycle accident, then a lawyer who understands motorcycles can better understand how your motorcycle accident occurred and the extent of the damage to your motorcycle.



Los Angeles lawyer Gabriel H. Avina has been riding motorcycles since before he could drive a car. Starting on dirt bikes as a kid, Gabriel now owns only motorcycles, which he rides daily. As an attorney who rides motorcycles himself and has been involved in motorcycle accidents himself, Gabriel understands motorcycle accident issues, such as liability, mechanical and structural damage to motorcycles, and the extent of injuries to the rider that can occur.

If you would like more information, call (323)299-1664 or email gabriel@avinalaw.com to set up a FREE consultation with Los Angeles personal injury attorney Gabriel H. Avina.

Thursday, February 28, 2013

Honest Officer, I Was Engaging My Voice-operated Phone - The New Textlaw!

As many may have already heard, since January 1, 2013, the driving while texting law has been amended with a possible defense.

Now, I'm no fan of police officers pulling anyone over simply because they claim they saw a driver texting someone.  In my criminal defense experience, much too often police officers use texting as a pretext to pull someone over when they lack any other legal basis.

However, as an avid motorcyclist, my higher viewpoint than most vehicles allows me to see just how much of a problem texting has become.  Everyone is texting.  Kids, adults, seniors.  Everyone.  Lately, every ride I take involves honking at someone who is furiously texting away, only occasionally looking up at the road.  Scary stuff.

That's why unlike a lot of critics, I don't see the amended text law as such a problem.  Specifically, the amended law added no texting, "unless the electronic wireless communications device is specifically designed and configured to allow voiceoperated and hands-free operation to dictate, send, or listen to a text-based communication, and it is used in that manner while driving." Vehicle Code Sec. 23123.5

Will officers still stop you for texting?  Of course.  But now you have a defense.  Now when you exercise your rights to have a traffic trial, you can explain to the judge that you just ended a voice call and were not in fact texting.  Additionally, law enforcement can still cite and pull over the reckless text-attics who treat driving as incidental to their texting.  Overall, it etches a middle ground that leaves no one completely happy, but does try navigating the practical applications of contemporary technology.