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

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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Marijuana Cultivation Evidence Thrown Out

The most common way that police gain entry into homes to search for contraband is by obtaining the consent of the occupant.  This often follows tips by nosy neighbors or anonymous callers on “drug hotlines.”  Almost by definition, the police in these situations do not have probable cause to get a search warrant – but they usually don’t need it since most people allow the police to search without a warrant.

In this case, Kirk McAllister argued that the police obtained consent from the client in the classic way: promising that if he didn’t consent to the search, they would get a search warrant and the children would then be taken by Child Protective Services (CPS).  After a long evidentiary hearing, the judge ruled that this amounted to a coerced consent, particularly because the police asserted that they would get a search warrant, not that they would merely apply to a judge for one.  This was a correct statement of the law.  The evidence of the marijuana cultivation was thrown out and the client’s case was dismissed.

In marijuana cultivation cases the two most important things to remember are that the police generally disrespect the medical marijuana law and that there is no advantage gained by willingly surrendering your constitutional right to be free from police searches without a warrant.  (Case No. 1421376)

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Pre-Arrest Delay Sinks Prosecution of Nurse

August 1, 2011- One effect of the sagging economy may be delayed investigations because layoffs and furloughs result in larger caseloads for fewer investigators.  How does that impact the citizen’s right to a speedy trial?  In a recent case Mr. McAllister succesfully argued that his client’s speedy trial rights were violated when the California Department of Consumer Affairs criminal investigator took too long to bring the case to the District Attorney for issuance of a complaint.  Because this prejudiced  the client’s right to a speedy trial, the judge dismissed all eight counts. (Case No. 1419165).

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McAllister & McAllister – Criminal Defense Attorneys

Today we live in a world where people need criminal defense attorneys more
than ever – particularly people who consider themselves law-abiding and thus immune from government
prosecution.

For example, at McAllister & McAllister we regularly represent businesses and company executives
who are charged criminally because an accident has occurred in the workplace resulting in injury or death. These do not fit the common conception of a “criminal.”

Lack of familiarity with the criminal system creates many opportunities for making mistakes, such as thinking that by talking with the investigating authorities without counsel one can “clear it up.” The most common problem I have seen is failing to engage a criminal defense attorney at the earliest stage, usually because no one realized that the problem could “go criminal.”

If anyone has any doubts about the kinds of cases that Cal-OSHA brings to the criminal courtroom, peruse the Cal-OSHA newsletter which we have linked to this website.

In today’s climate, criminal defense lawyers are, as one judge wrote,
“necessities not luxuries.”

For you convenience, an intake form as been added to this website so that you can hasten the process of hiring a lawyer.

McAllister & McAllister, Inc., is dedicated to providing our clients with the one-on-one personal attention
that is required to handle your case. As Modesto and Santa Rosa’s premier legal defense firm, we specialize in handling complicated criminal defense matters.

McAllister & McAllister, Inc., believes in an aggressive defense of its clients, with heavy reliance on
thorough investigation. Vigorously defending clients means that we frequently take cases to jury trial.

McAllister & McAllister, Inc., is known as “The law firm that police officers choose when they are in trouble.”

If you need legal representation in the Stanislaus, Merced County area or anywhere in the Santa Rosa area, call or contact us via email to schedule a free consultation. We look forward to serving you.

Areas we serve include:
Stanislaus County, Sonoma County, Merced County, San Joaquin County and Tuolumne County.

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Charged With A Crime? Know Your Rights!

Know Your Rights in a Criminal Case
If you’ve been charted with a crime, the United States Constitution and your state’s constitution promise you some very powerful protections. With every step of the process, new rights will come into play. A local criminal defense attorney will be able to look at your case in detail, and make sure that your rights have been honored up to this point, and that you understand your rights going forward.
Pre-Arrest Rights
You have the right not to incriminate yourself, which is commonly described as the right to remain silent. The right against self-incrimination is actually more complex than simply the right to remain silent.
You have the right to be free of “unreasonable search and seizure”, though there are various regulations and exceptions that accompany that right.
You have the right to an attorney. Here at McAllister & McAllister, you will be able to get in touch with a criminal defense attorney who can make sure that you understand your rights. It’s important to note, however, that your right to an attorney does not necessarily apply to your decision as to whether to take or refuse a breathalyzer or blood alcohol test.
You also have the right to be advised by police about these rights, commonly called Miranda Rights.
When can the police conduct a search of my property?
There are rules and regulations that surround police searches. The police can search your home, property, car, or financial records if they have probable cause to believe that they’ll find evidence of a crime, and therefore receive a search warrant issued by a judge.
But in some situations, the police can also conduct a search without a warrant. If, for example, a potential piece of evidence is sitting out in the open, where there is “no reasonable expectation of privacy,” then the police aren’t required to have a search warrant to conduct a search. They also don’t need a warrant if you voluntarily agree to a search. Many people have let the police search when they didn’t have to, because they didn’t know they had the right to refuse. It is easy to misstep and hurt your case, but a criminal defense attorney will be able to give you the explicit details of search and seizure laws as they pertain to your case.
When do the police have to read me my rights?
If you are a suspect, the police are required to read you your Miranda rights before conducting a custodial interrogation. What exactly constitutes “custodial interrogation” has been the subject of many court cases, and is more complicated than you might expect. Clearly, not all discussion between the police and a suspect is “interrogation.” Some discussions are different than interrogation, like the kind of simple practical interaction that might occur between police and a suspect to ask if he wants something to drink, for example. The police don’t need to read a suspect his or her rights at this point. However, in some circumstances a police officer may be found to have interrogated a suspect in custody even without asking direct questions.
Once a custodial interrogation begins, the police must read the suspects his or her rights and ensure that they are understood. A criminal defense attorney in your area can.
If the police don’t read my rights, do they have to dismiss the charges?
Many people think that if the police don’t read them their rights, the charges are automatically dismissed. This is usually not the case. Instead, if a suspect is interrogated in custody without being read his rights, then the statement he or she makes may be excluded as evidence.
Additionally, any evidence that wouldn’t have been discovered without that original statement may not be admissible as evidence either. Sometimes this lack of usable evidence can lead to dismissed charges, but there is no automatic dismissal if a suspect’s rights are not read.
I have heard that I have a right to a “speedy trial.” What does that mean exactly?
The 6th Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” But there isn’t a specific Constitutional guideline to determine what exactly constitutes a “speedy trial.” Some jurisdictions have established set time periods within which a criminal case must pass through the system. Cases that exceed these time periods-without good cause or delays at the request of the defendant-may be dismissed for that reason alone.
In jurisdictions without specific time limits, the courts typically consider the actual passage of time and reasons for the delay, how the delay may impact the case, and the defendant’s assertion of his rights to a speedy trial. The seriousness of the charges and possible consequences can also impact the trial judge’s analysis, though this is not a consideration set forth by the Supreme Court.
When do I have the right to a trial by jury?
Any crime that may be punished by imprisonment for more than six months automatically triggers the right to a trial by jury, no matter what the offense is. While there isn’t a universal definition of the term, those crimes determined to be “petty offenses” don’t necessarily warrant a trial by jury. The number of people on the jury can vary also, depending on the state and the seriousness of your crime. Usually a jury of twelve must return a unanimous vote, though the U.S. Supreme Court has approved decisions by some states to accept verdicts that are not unanimous. If the court uses a jury of 6, though, the verdict must be unanimous.
Recent U.S. Supreme Court decisions have also determined that if a defendant exercises his right to a trial by jury, aggravating factors for sentencing purposes must also be decided by a jury, and must be established beyond a reasonable doubt.
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