About Edward Martinovich, Esq. Expertise Please do not ask me questions regarding possible terms of imprisonment. Further, if your question has to do with statutes of limitation, be aware that if you have been out of the state to avoid the charges, the statute will not apply. Finally, do not ask questions such as "I want to make a will for my kids, can you write it and email it to me"
I can answer any questions regarding the criminal justice system, from arrest all the way through appeals, and for that matter, many other generic legal issues as well.
Experience I am currently a criminal defense attorney. I have approximately 5 years of experience in both civil, constitutional, labor, and criminal law. I am a member of both the California and New York bars. I am currently an attorney for Johnny Cochran's criminal defense firm.
I worked for the Legal Aid Society of New York City. I worked for the NY Civil Liberties Union, and for the New York State Attorney General-Civil Rights Division.
Education/Credentials I graduated Magna Cum Laude from the State Univ. of NY at Albany. I graduated from City University of NY School of Law in 2001, at near the top of my class. I passed both the NY and California bar exams on the first try, widely considered to be the most difficult exams in the nation.
Question im sorry but your answer was not very clear...and kind of contradicting. Lets suppose im 100% sure the charges will be dismissed at the next court appearence..However, by that time, the chances of being called in on a violation hearing are excellent..then what? The best way to beat it are to already have the case dismissed before the violation hearing..is there someway to speed it up with a ''motion to dismiss'' of some sort? -------------------------------------------
The text above is a follow-up to ...
-----Question-----
if someone is on probation, and gets charged and arrested for o.u.i.,then later beats the case,by either dismissal or a not guilty finding..can probation still violate you and incarcerated you and make you do your suspended sentence?
-----Answer-----
Me:
Yes, their probation may still be violated because the amount of evidence needed to sustain a criminal conviction is less than is needed to prove a violation of probation.
However, unless there is overwhelming evidence of guilt, most judges probably wont violate a probationer on a charge he was acquitted of, but obviously i cannot be sure. Have you spoken to your PO about this?
Answer My answer was not contradictory, you just don't understand it. I'll rephrase it:
The OUI and the VOP are two completely seperate matters. You can have your OUI dismissed or be acquitted of it because let's say, the officer lacked probable cause to pull you over, or the breathalyser machine had not been calibrated properly. Because, in a criminal trial, the proof needed to convict someone is "proof beyond a reasonable doubt", which some people say is about 85 to 90% certainty, you may win that case.
However, in a VOP, the proof needed is "clear and convincing evidence", which is a lower standard, maybe about 65 to 70% certainty. Now, the amount of evidence against you in the OUI may not rise to the "beyond a reasonable doubt", but it may be "clear and convincing" that you violated the terms of your probation by let's say, speeding, consuming alcohol and driving, not obeying all laws, etc.
I'm not saying this WILL happen, but your question was "can probation still violate you and incarcerated you and make you do your suspended sentence?" Yes, you can beat the OUI case but still be violated.
