Criminal defense lawyers serving: Stanislaus, Sonoma, Tuolumne, Merced, San Joaquin Counties - and Federal Courts in Sacramento and Fresno

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KIRK McALLISTER ENDS IMMIGRATION NIGHTMARE

In 1981 the client (client’s name withheld at her request) was born in Costa Rica, where her family resided for a year before coming to the United States. Everyone in the client’s family achieved citizenship, but through oversight the client who was a legal permanent resident never became a United States citizen. The family opened and ran a successful business.

Like many other young people, the client saw the recreational use of drugs lead to addiction. This resulted in felony convictions in two counties for the possession for sale of drugs and transportation of drugs for sale.

It is no secret that the immigration policies of the United States are draconian, but they are particularly unforgiving when one is convicted of drug offenses. Thus the client was deported in 2009 to Costa Rica, where she had no family, knew no one and did not speak the language. All she arrived with were the clothes on her back.

The client made the best of the situation. She rehabilitated herself from the clutches of her drug problem. She learned the language. She went to college and earned several bachelor’s degrees, graduating with honors. She volunteered, teaching native children English. She became the assistant manager of a prominent hotel.

These accomplishments did not erase the fact that she was separated from her entire family. She was banished.

After eight years, the client’s family retained a highly regarded expert on immigration law, Mr. Norton Tooby, author of the landmark treatise Criminal Defense of Immigrants. Kirk McAllister was then called by Mr. Tooby, who had previously enlisted Mr. McAllister’s help in other difficult criminal immigration cases.

Mr. McAllister first turned to the Stanislaus County case. He concluded that the client had not been given adequate immigration warnings. On this basis he made a motion to overturn the conviction. That was granted and the case was then dismissed.

Next, on a similar basis, the Tuolumne County convictions for possession for sale and transportation for the purpose of sale were vacated, although not dismissed. On May 22, 2018, two weeks before the jury trial, Kirk McAllister was able to convince the prosecutor to dismiss the drug charges.

The client is now back in the United States, reunited with her family, pursuing citizenship and ready to resume her career. Her nine year nightmare is over.

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Cal/OSHA

On April 25, 2018, at the invitation of the Employer Advisory Council (EAC) of San Mateo County, Kirk McAllister presented a seminar to executives and managers on the subject of industrial accidents investigated as crimes by the Occupational Safety and Health Administration (OSHA) and what to do when that happens.

Kirk McAllister has defended businesses, executives and managers in Cal/OSHA matters since 2002. He calls these cases “sharks with no fins” because no one sees the likelihood that an accident investigation will lead to criminal charges.

In fact, if you have a fatal workplace accident, it will be referred to the Bureau of Investigations, the criminal arm of Cal/OSHA.

No one can predict when an accident will happen, but Mr. McAllister advises businesses to have a plan ready for that eventuality. In this situation a company’s normal responses will worsen the consequences. McAllister’s plan includes the all-important issue of how to handle the inevitable publicity that follows a fatal accident. When a company waits for the accident to happen without planning, the fast-moving events will guarantee that the response will be disjointed, ineffective and may even enhance the possibility that criminal charges will be filed!

The EAC audience asked thoughtful questions which contributed to a stimulating seminar. Hans Boehm of the State of California Employment Development Department is to be thanked for facilitating this seminar.

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THOROUGH INVESTIGATION GETS CLIENT’S CASE DISMISSED

What happens when a teacher has his class disrupted by an unruly student who dislikes the teacher, calling him names to the student’s friends and making obscene gestures and gyrations behind the teacher’s back?

The teacher is charged with felony child endangerment!

Scott Wendt is a committed, extremely popular junior high math teacher. He considers teaching children his calling (actually it is his second calling—he previously was a minister).

One day when the student had been particularly disruptive and disobedient, the teacher led him back to his seat, holding him by the forearm. The student claimed that the teacher’s action had resulted in him breaking a bone in his hand. The bone which was broken, the scaffoid bone, is a small one in the hand that almost always breaks only when one braces for a forward fall by extending the hand downward.

Mr. Wendt asked Kirk McAllister to defend him. The investigation began immediately.

All the students in the class were interviewed. School records were obtained, with the authorization of the judge who was to hear the case.

A P.E. teacher had a specific recollection of the student in P.E. class in the period following Mr. Wendt’s math class. The student fully participated in P.E., even doing push-ups!

Another former teacher of the student was found who had made extensive notes about the young man. She was troubled by his constant lying about others hitting him, and made her notes because she was afraid that he would lie about another student, or even a future teacher! She did not know Mr. Wendt.

Past students of Mr. Wendt were lined up to be character witnesses to his caring, peaceful nature.

The assumption in the courthouse was that the District Attorney would offer a misdemeanor as a way for Mr. Wendt to avoid a felony.  Mr. Wendt was adamant that he was not going to take a plea bargain—he knew he was innocent.

Within the time prescribed by law, Mr. McAllister provided the prosecutor with the evidence that would be presented to the jury in his client’s defense.

The day before jury selection was to start, the District Attorney dismissed the case.

Scott Wendt is now back in the classroom, following his passion—teaching the children.

(Mr. Wendt’s name and photograph appear with his express permission.)
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