Post-Conviction Relief: Health & Safety Code section 11550(b) Under the Influence Offense – Vacated & Dismissed

Recently, at the Downey Courthouse in Los Angeles County, I obtained a dismissal on behalf of my client for his 1996 Health & Safety Code section 11550(a)(Under the Influence of a Controlled Substance) conviction.

In this matter, our office began by conducting pre-filing investigation to determine what documents pertaining to the offense were still in existence. We determined that the court file was ordered destroyed in 2011 and only the court docket was available. Further, according to the docket, a court reporter was not present at the plea date. Therefore, a transcript of the proceedings did not exist.

According to the court docket, a “written advisement of rights and waivers” was filed. However, we argued that it was not clear from the record what waiver form was submitted at the time of our client’s plea and, therefore, we were unable to determine whether our client was given a valid Penal Code section 1016.5 advisement. Based on the fact that all sources of information pertaining to the offense failed to establish that the complete and accurate immigration advisements required by Penal Code section 1016.5 were administered to our client, we argued that the plea must be vacated.

At the hearing on the motion, the Penal Code section 1016.5 motion was granted by the judge, vacating the conviction, and the case was subsequently dismissed pursuant to Penal Code section 1385 (in the interests of justice).

When my client hired our office he was being detained by Immigration and Customs Enforcement at the Adelanto Detention Center as a result of this conviction. With this dismissal, our client now has an improved opportunity to stay united with his family in the United States.


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