In my Criminal Defense Practice, I represent both U.S. citizens and non-citizens alike. I am a criminal defense and immigration attorney. I aggressively defend my clients and seek to avoid convictions by using a variety of creative legal strategies and preparing my cases thoroughly. Below you will find a sampling of some of the Motions used to win your cases.

PRETRIAL DEFENSE MOTIONS:

1.  MOTIONS TO SUPPRESS EVIDENCE:
   
   When the police have detained or arrested someone and seized evidence without probable cause, then a motion to suppress is the appropriate remedy. These motions are very effective. If judge finds your rights have been violated by the police, then the evidence that was taken by the police can no longer be used in a court of law. In most instances, when these motions are granted, the cases are dismissed because there is no evidence left to prosecute.
   
   
2.  MOTIONS TO DISMISS:
   
   This remedy is a part of an aggressive defense strategy to dismiss the criminal case when the government has failed to produce enough evidence at the preliminary hearing, violated a defendant's right to have an attorney present before police questioning or denied the defendant's right to a speedy trial under the 6th Amendment.
           
3. MOTIONS FOR REDUCTION OF BAIL OR RELEASE ON OWN RECOGNIZANCE (O.R.):
   
   This allows for defendant's speedy release from custody so that we can take adequate time to prepare the best defense while out of jail.
   
   
4. MOTIONS TO CHANGE VENUE:
   
   Pre-trial publicity can ruin the chance for a fair trial. Changing the location of a trial from a county where the crime occurred generally favors the defendant. By moving the trial to another county far from the crime location, we are more likely to find an impartial group of jurors who have not been so influenced by negative pretrial publicity where a defendant can get a more fair trial.
   
   
5. MOTIONS TO CONTINUE:
   
   When it is in the defendant's best interest to delay a hearing or trial, then use a motion to continue. Sometimes you need to continue a case where defense witnesses become unavailable to testify. Other times, continuing a case can produce a favorable outcome where key prosecution witnesses will become unavailable if the hearing or trial is continued.
   
   
6. MOTIONS TO EXCLUDE EVIDENCE:
   

• When a defendant or non-citizen has prior conviction(s) based upon constitutional violations, then a motion to strike or dismiss that conviction is an important tool in the defense arsenal. If the prior conviction is excluded by the judge, then the jury will not hear about it and the defendant will not be impeached or prejudiced by the prior conviction(s) if he or she testifies in front of the jury.

1. Motions to Reduce Felony Convictions to Misdemeanors are very effective for citizens and non-citizens. These motions can eliminate the adverse consequences of felony convictions for all purposes. If granted, winning such a motion sometimes eliminates the need to report the conviction when applying for most jobs. Reduction can also eliminate the adverse immigration consequences of felony convictions that could have been used for removal/deportation purposes.
   
   
   
2. Motions to Modify conviction(s) are brought for non-citizens whenever their prior criminal conviction(s) are classified by the U.S.C.I.S. as “aggravated felonies”. Such convictions may result in permanent removal (deportation) from the U.S. By modifying the sentence, for example, from one year to 364 days, we can change the classification from an aggravated felony to a simple felony which may not be used as a basis for deportation by the U.S.C.I.S. or by the immigration courts.
   
   
3. Motions to Expunge Prior Convictions are important to citizens and non-citizens alike. Motions to expunge criminal convictions can be granted only after successful completion of probation. When granted by the court, the conviction does not have to be disclosed when asked in employment applications: ..."Have you ever been convicted of any crimes?" You can answer "no" to this question. However, the conviction does remain on your criminal record and does not eliminate adverse immigration consequences. These motions are effective in establishing the requirements of good moral character and rehabilitation for those aliens petitioning for lawful permanent residency and applying for naturalization. Expungements differ from motions granted because a person was factually innocent of the charge(s) they were arrested for. [See discussion in paragraph No. 4 below.]
   
   
4. Motions to Destroy Records of Persons Factually Innocent may be brought in any case where a person has been arrested and/or prosecuted but where no conviction occurred. This motion requests the court to make a finding that the person is factually innocent of the charges for which he or she was arrested. If granted by the court, then any reference to the arrest record shall bear the notation “Exonerated” and shall not be admissible as evidence in any action. In addition, destruction of all entries and notations pertaining to the arrest record shall be accomplished by permanent obliteration. The record shall be prepared again so that it appears that the arrest never occurred. If there are no other entries contained in that person’s criminal history record other than the arrest, then the entire record shall be physically destroyed. This motion is different from an expungement of your criminal conviction following successful completion of probation. Here, the actual record of the arrest itself is physically obliterated from all government’s records so that it appears the arrest never occurred and therefore, can not be used against you. This motion is particularly helpful for non-citizens seeking to adjust their status, defend themselves in removal proceedings, and to establish good moral character when applying for a visa, lawful permanent residency and naturalization. [For further information, please refer to Paragraph 3. above on Expungements.]
   
   
5. Motions to Vacate Criminal Convictions are among the most important and effective ‘tools’ an experienced immigration and criminal defense attorney has to defend a foreign born client in immigration court removal (deportation) proceedings. This motion to vacate is filed in the California state court where the criminal conviction occurred. The grounds for filing this motion arise when the non-citizen was not adequately informed by the judge or the defense attorney about the adverse immigration consequences of being convicted of the crime for which the non-citizen has pled guilty or no contest. This motion can be brought even many years after the non-citizen was sentenced. If the criminal conviction is vacated, then the underlying immigration removal proceeding can be terminated because there would no longer be a criminal conviction upon which the government could rely to deport that person.
   
   
   

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   E-mail: Stephen Eckdish
   1956 Lombard Street
   San Francisco, CA 94123
   
   Telephone:(415) 776-1633
   Facsimile: (415) 776-1603
   

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   The responses and information are intended to be general and should not be relied upon for any specific situation. For legal advice, consult an experienced attorney. Nothing on this or associated pages, documents, comments, answers, E-mail, articles or other communications should be taken as legal advice for any individual case or situation. All contents copyright © Stephen Eckdish, Attorney at Law 2001. All rights reserved.