What Is A Harvey Waiver And How Is It Used With Restitution In A Criminal Case?
What Is A Harvey Waiver And How Is It Used With Restitution In A Criminal Case?
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“All right, a Harvey Waiver is a situation where a defendant has been charged with more than one count, or the possibility that there is an alternate case, another case that may get file against the client.”
Ray Hrdlicka – Host – Attorneys.Media
“Oh, something in the future?”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Something in the future, or actually that could be filed but the District Attorney hasn’t filed it because he’s wanting to resolve it all at once, in this particular case. Let’s use the example of a client of mine, in Stockton, who had four prior petty thefts, where she did prison terms for three of those. The client got a new arrest. I represented her. The District Attorney presented evidence to the Judge, while we were negotiating the resolution of this case, that my client had a ring of people, a daughter and a granddaughter, that she was using as part of the thefts of various stores. Walmart’s, Target stores, and so on. They believed that she was active throughout the county in about six or seven different cities. And they believed that the thefts from all of those stores, in separate locations, came to about $9,000.
We resolved the case for a single petty theft charge, but the client agreed to this Harvey Waiver…that she would waive her right to reject the losses from the other cases, the prospect of cases that could have been charged against her. And she agreed to pay the $9,000 as part of her probation.”
Ray Hrdlicka – Host – Attorneys.Media
“So she didn’t get charged on those other crimes, she just had to pay restitution on them.”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Correct. Obviously, it was going to be a significant financial burden for her, but we felt it was much better for her to agree to pay that, than that she would refuse and we would force the District Attorney to file additional charges against her, which would make her more vulnerable to yet another prison term. So, that’s an example of a Harvey Waiver.
A variation on the theme is when the client has multiple counts, and several counts are being dismissed in light of the plea, if there was damage caused by any of the acts of those other charges that were dismissed, the client will then be asked to do a Harvey Waiver and pay restitution to the victims of those crimes, even though he or she is not pleading to those particular crimes.”
Ray Hrdlicka – Host – Attorneys.Media
“So, it’s separating restitution from the actual penalty, the criminal penalty applied in that case.”
Andrew Dósa – Criminal Defense Attorney – Alameda County, CA
“Correct. And the idea was that restitution can be added from other charges that she was not pleading to, that she wasn’t getting a conviction for.”
If you’ve been charged with a crime, one of the things that you should think of is what type of defenses are available to you. There are different types of legal defenses available in criminal law, and the type of criminal defense applicable to you and your case will depend on your situation.
Criminal defense law consists of all the legal protections given to individuals who have been accused of committing a crime. In criminal court, the prosecutor must meet the burden of proof – that is, the responsibility of proving their allegations against the accused.
The police and prosecutors have plenty of resources at their disposal to go after someone and charge them with a crime. To balance the power within the justice system, certain protections are in place for the accused. These, and the skills and experience of a defense attorney will dictate how a defendant will be treated in criminal litigation.
An experienced criminal defense attorney knows how to use constitutional laws for the benefit of their client. For instance, criminal prosecution is based upon the evidence gathered by law enforcers. This evidence can be in the form of physical evidence. This will usually consist of objects found in a crime scene, like a possible weapon, tire marks, shoe print, or even tiny pieces of fabric.
Common Defenses in a Criminal Case
There are many common defenses to criminal charges. You may argue that there are inconsistencies in the prosecution’s case against you, that the evidence gathered violated your constitutional rights, or that you had a justifiable reason for committing the crime. Below are some common primary criminal law defenses.
The defendant didn’t commit the crime you were charged for. The defense can provide an alibi proving you weren’t at the scene when the crime occurred, or present evidence and witnesses that can counter the prosecution’s case.
The defendant admits to using force. However, the defense argues that it’s justified since it was done in self-defense due to the violent and threatening actions of the other party.
The defendant may plead insanity to avoid being punished, since a criminal punishment is only justified if the offender has full control over their actions and understand that what they did was wrong.
In certain circumstances, a defendant may commit crimes under the influence of alcohol and drugs. This can be used as a criminal defense as if it affects the defendant’s mental functioning to the point where they cannot be held accountable for their actions.
If law enforcement officers caused the defendant to commit a crime that they wouldn’t have otherwise committed, then it’s considered entrapment and be used as a defense in criminal court.
Claiming innocence is one of the most basic defenses to criminal liability. You must remember that the prosecution has to prove the crime filed against you beyond a reasonable doubt. If you’re innocent, you don’t have to prove anything, but you can provide documents, testimonies, or evidence that will support the claim that you’re innocent.
A constitutional violation is a type of criminal defense used if the evidence collected by the prosecution was gathered in a manner that violated your constitutional rights. This can include the illegal search, entry, or seizure of your house, car, clothing, etc. Failing to obtain an entry warrant, getting an improper confession, or failing to read to you your “Miranda Rights” at the time of your arrest are also constitutional violations that could lead to suppression of evidence against you or the total dismissal of the case.
Similar to self-defense, you can use this type of defense if you have used a justifiable amount of force or violence to protect others who are being threatened or are in danger.
Other types of criminal defenses include defense of property, necessity, involuntary/voluntary intoxication, mistake of law, coercion, abandonment, and the statute of limitations.
If you’re accused a crime in California, it can be difficult to know where to start. That’s why you need an experienced defense attorney on your side when you face your charges. With over 20 years of experience successfully defending clients in California, Andrew Dósa understands the unique challenges of criminal defense in Alameda, CA and other areas in California.
Contact Attorney:
Andrew Dosa
Andrew Alexander Dósa is a trial attorney with more than 36 years of experience in civil/business litigation, criminal defense, personal injury claims, and estate planning.
