WHY DO I NEED A LAWYER?

A District Judge once said: “Going through the criminal process without a lawyer is like sitting down to play a game only you are not told the rules of the game until it is over.  Even if you should win the game you won’t because you did not know the rules ahead of time.” 

The criminal system is a complicated one with many rules that need to be followed to achieve the best result for you.   If you are arrested for a crime you need to contact a lawyer as soon as possible.  A criminal defense lawyer has a better understanding of what you should say to law enforcement and what you should not say to law enforcement.  A criminal defense lawyer has the knowledge to recognize when law enforcement did not follow their rules and thus when your case should be dismissed.  A criminal defense attorney can negotiate on your behalf and save you time behind bars, money and stress. 

WHAT IS THE CRIMINAL JUSTICE PROCESS?

Arrest:  Arrests can occur with or without an arrest warrant.  Before the police can arrest you, there must be probable cause.  Probable cause is a more likely than not standard. Think of the scales of justice – one side just has to tip slightly to reach the probable cause standard.  There must be probable cause to believe that a crime was committed and probable cause to believe that the person being arrested committed the crime. 

When you are arrested, you have certain rights that the police must inform you of before they ask you any questions.  These include: the right to remain silent and the right to an attorney.  We have all heard about the Miranda warning.  You do have the right to remain silent.  You can refuse to answer any questions until you have an attorney present.  If you are facing jail time you have the right to an appointed attorney if you cannot afford one. 

Arraignment for misdemeanors:  once the prosecutor files criminal charges against you will make your first court appearance which is called an arraignment.  If you are still in jail, the arraignment will occur within 72 hours typically.  At that you time you will be asked to enter a plea.  You can enter one of four pleas: 1) Guilty meaning you admit the facts of the crime and that you were the one who committed to.  2)  Not guilty meaning that you indicated you did not commit the crime you are charged with.  A trial date will then be set.  3) No contest plea.  This means that you aren’t admitting guilt but you do not dispute the charge.  You are treated as though you have pleaded guilty, but a no contest plea cannot be used against you later in civil proceedings.  4) Mute plea: In California you can choose to not say anything and the court will enter a not guilty plea for you and set the case for trial. 

At the arraignment the court will also set bail.  The court may refuse to set bail and release you depending upon the charges and your past record.

Preliminary Hearing/Felony arraignment:  If you are charged with a felony you are entitled to a preliminary hearing.  Preliminary hearings are typically used by defense attorneys as a discovery tool.  A preliminary hearing carries the probable cause standard but allows the defense to get a firm grasp and understanding of what evidence the prosecution has against the defendant.  If the Judge finds probable cause at the preliminary hearing, you will enter your plea at that time.

Trial.  If you cannot reach a plea agreement with the prosecution, your case will proceed to trial.  If you are facing a crime that is punishable by more than six months in jail you have the right to a jury trial.  You can waive your right to a jury trial and ask for a trial by the judge, typically called a bench trial.  In a bench trial the judge is the fact finder instead of the jury. 

Sentencing. If you plead guilty or are found guilty you will then be sentenced. 

Appeals.  If you are found guilty at a trial, you need the advice of legal counsel.  There may be errors that occurred in your case that would allow for an appeal and possibly overturning the decision.

WHAT IS THE THREE STRIKES LAW?

The Three Strikes Law is a sentencing enhancement.  It says that if you have one prior felony conviction (“one strike”) then the sentencing for your second felony conviction (“second strike”) can be doubled.  It also says that if you have two prior felony convictions (“two strikes”) and are charged with an additional felony (“third strike”) you can be sentenced to 25 years to life in prison. Under the statute, only certain felony convictions may be considered, and the prosecution must prove your prior history. 

WHAT IS MY RIGHT TO A SPEEDY TRIAL?

Generally you must be brought to trial within 60 days of your arraignment.  You can waive your right to a speedy trial in order to have more time to prepare your defense.  The prosecution can also request a continuance past the 60 days but good cause must be shown why the prosecution is making the request.  After a hearing on the matter the Judge will determine if the trial should be continued. 

WHAT IS A FELONY, A MISDEMEANOR, AN INFRACTION AND A WOBBLER?

A felony is a crime that is charged that calls for imprisonment in a state prison.

A misdemeanor is a crime that is charged that calls for imprisonment in a county jail.

An infraction is a crime charged that calls for no imprisonment but a fine instead.

A wobbler is a crime that is charged that can either be a felony or misdemeanor. 

I WAS ARRESTED FOR DUI.  WHAT HAPPENS TO MY DRIVER’S LICENSE?

When you are arrested for a DUI, two separate processes can affect your ability to continue to drive.  The DMV administrative process and the criminal court process.  In California an arrest for DUI does not automatically result in a suspension of your driver’s license.  However, without taking the necessary steps to prevent the suspension you could lose your license for four years. 

In order to prevent the DMV administrative process from suspending your license right away, the DMV must be contacted within 10 days of your arrest.  You need to request a hearing to prevent the suspension.  You need an experienced criminal defense attorney to handle this for you. 

Even if successful in preventing the administrative process from suspending your license, if you are found guilty of a DUI, your license will be suspended.  Again, this is where you need an experienced lawyer to evaluate your case, negotiate with the prosecution, and if necessary, try your case to a jury.