An arrest does not necessarily mean that charges will be filed against you. The arresting agency must first submit the police report to the prosecutor's office. The local District Attorney or City Attorney then decides what charges to file if any. After your arrest if you keep your mouth shut you may be able to prevent a complaint from being filed against you. Once you start talking to arresting officers or investigators it is very likely that you will make admissions or incriminating statements that will seal your fate and make it more likely that a case will be filed. The best legal advice we can give a suspect is to keep your mouth shut and ask to speak to a lawyer before things get any worse.
After an arrest you or your family can contact a bail bondsman who will post a bond on your behalf and you will be released within hours of the bond posting. The arresting law enforcement agency will set a bail amount but that amount may be reduced by the court at arraignment, or it may go up in some cases. Some judgs will release you on your own recognizance (O.R.) so if you do not bail out before your arraignment you may still get released without posting bail depending on your record and the severity of the charge. A reputable bondsman will charge around 10% of the bond amount to secure your release. If your bail is set at $50,000 a bail bondsman will charge around $5,000 to get you out.
Own Recognizance (OR) Release referrs to an agreement between a client and the court where the judge agrees to release the defendant without bail if he or she signs an Own Recognizance (OR) agreement. The OR agreement is a promise to appear at all court hearings and it may also include certain conditions imposed by the judge. To determine whether OR release is granted a judge will consider a person's criminal record, ties to the community and whether or not the person appears to be a flight risk. or danger to the community. Our firm works with you and your family before arraignment to compile and present favorable evidence to the judge to help you get an OR release whenever possible.
The first court date is the Arraignment. The law requires that you are arraigned within two days of your arrest, however with weekends and court holidays that time limit is often extended to three or four days. At arraignment the prosecution must present you with a written complaint that includes the charges filed against you. At that point you either admit or deny the allegations by pleading guilty or not guilty. Once you plead not guilty you have the right to a speedy trial within the speedy trial period outlined by the law. A defendant can always give up the right to a speedy trial and postpone the case but that may not be advisable given that speedy trial rights are one of the few weapons in a defendant's arsenal against the government.
If you are charged with a misdemeanor and you are out of custody you have the right to begin trial within 45 days of your arraignment date. If you are in custody you have a right to a trial within 30 days. If the court or prosecution can not proceed with trial within the time limits then your case may be dismissed unless you agree to postpone it. In felony cases you have the right to a preliminary hearing within 10 days of arraignment. Following the preliminary hearing there is an additional arraignment called the "Information Arraignment." In felony cases you have the right to a speedy trial within 60 days of the information arraignment and if the prosecution is unable to proceed by that time then the case should be dismissed.
At this hearing the DA presents evidence and witnesses to the alleged crime. The defense has an opportunity to cross examine all witnesses and call their own witnesses to testify. By the end of the hearing the judge must determine if there is enough evidence to allow the case to continue to the next stage of the proceedings (information arraignment) before it is set for trial. If there is insufficient evidence presented at preliminary hearing then the judge discharges the defendant and the case is terminated at that time. A defendant has the right to a preliminary hearing within 10 days of his arraignment. If the prelim does not begin within 10 days then the case should be dismissed unless the defendant agrees to postpone the hearing.
Driving Under the Influence (DUI) is one of the most common crimes in the state. While they seem fairly straightforward they are actually very technical and fact specific. A skilled attorney can challenge your case from many angles such as the validity of the stop, the reliability of the alcohol test and the details in the investigation and police report. It is a good idea to at least speak with a private attorney before going to court on your DUI. If there are legitimate issues with your case a skilled attorney can get the charges reduced, dismissed, or beat the case at trial.
For a first time DUI without accidents or injuries and without an excessive blood alcohol result, most judges in most counties will place you on misdemeanor probation, order you to complete a 3 month DUI class, pay fines and fees and possibly require installation of an in ignition interlock device that requires you to breathe into the device to make sure you did not drink before starting the car. A second time DUI within 10 years of your first will carry an additional consequence of a longer DUI class, possible custody time and any other terms the judge and prosecution see fit. If you are charged with a fourth DUI within a 10 year period you can be charged with a felony and possibly serve up to three years in state prison depending on your judge, prosecutor and circumstances of the offense. It is important to talk to a defense attorney early to review your case in detail and explain all your options before going to court.
Remember everyone has the right to remain silent. Even at a DUI checkpoint you do not have to admit anything, especially how many drinks you've had. When asked if you've had anything to drink politely reply "Officer are you arresting me or am I free to go?" If they ask again just politely repeat the same response until they let you go. Unless they've seen you driving erratically or smell alcohol on your breath they can not arrest you for refusing to answer questions because that is a constitutional right. If you are pulled over for bad driving you should also refuse to answer questions about alcohol consumption by asking the same question. Don't lie and deny drinking because if they smell alcohol on your breath they will use that lie against you later. If police ask you to do the field sobriety test you should politely refuse, it is your right to refuse the test and you should always refuse the test because even sober drivers fail this test. The one test you must agree to is the blood, breath or urine test. If you do choose to refuse that test then the DMV will suspend your license for one year pursuant to Ca Vehicle Code Section 13353. If you have multiple DUI convictions and are at risk of being charged with felony DUI with priors you may consider refusing the chemical test and sacrificing your license for a year rather than facing felony charges and possible prison time.
It is common for a spouse or partner to report domestic violence to the police then change their mind and later request not to file charges. Unfortunately once the police are involved the ball is no longer in your court. Police will submit their report to the prosecutors who decide whether or not to file charges. If the case is filed, we can provide the prosecution with statements and mitigating factors that may help us get the case dismissed. Even if the case is not dismissed, we can develop strategies and present evidence at trial to keep you from being convicted.
The police do not have to read your rights. The law only requires them to read your rights before they question you about your involvement in a case. If you are interrogated and police do not read your rights then any incriminating statements you make during that interrogation can be challenged and thrown out of court and will be considered unlawful and inadmissible statements. If you are arrested but not interrogated then there is no legal objection to make about your rights being read to you.
Public defenders (PD's) are licensed attorneys who often have more experience and knowledge than many private defense attorneys. Unfortunately you do not get to choose your Public Defender and can not request a new one if you are unhappy with their service. Public Defenders generally have a very heavy case load which makes it more difficult for them to communicate with you regularly and to discuss your case in person or over the phone like we do with our clients. Because the PD is appointed at arraignment, you will not have an opportunity to speak with them before your first court appearance. With a private attorney you can talk about bail, OR release and case strategy before you ever step into the courthouse, that is not the case with the PD. The PD provide a valuable service to indigent clients, but if you can afford it you will be better off with a skilled, capable private defense firm.
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