KNOW YOUR RIGHTS
This is intended for informational purposes only and is not intended as legal advice. To speak with Mr. Smith, call (818) 605-0968 for a free, confidential consultation.
Hiring the right lawyer promptly makes a huge difference in criminal cases. An attorney is an important investment in protecting your rights. You'll need a lawyer if you plan to try your case, but even if you do not plan on taking your case to trial you still need an experienced criminal defense attorney to help you lower your bond/bail; tell your side of the story; negotiate for a favorable plea/sentence; protect your rights; and keep you informed of all your options. If you have been arrested, selecting a lawyer is one of your most important tasks. Choose a lawyer with extensive trial experience. Whether your case is headed for trial or a plea, you need an attorney who knows how to try a case. Only a lawyer who has successfully tried many cases like yours knows the strengths and weaknesses of your case and has the credibility to negotiate the "best" deal for you.
The criminal process begins when law enforcement either makes a formal or informal inquiry, stops your vehicle, issues a search warrant, or makes an arrest. What happens depends on the individual facts and circumstances regarding the event or events. Regardless, you need to know and protect your rights.
Since every case is different and depends on specific facts and circumstances, you have certain rights at every stage of the criminal process.
In general, in all cases (misdemeanors and felonies), YOU HAVE THE FOLLOWING RIGHTS:
1. THE RIGHT TO REMAIN SILENT -
When cops approach:
SHUT UP! . . . but be polite, you’re on their turf. Other than showing identification, you have the right to refuse to talk to or answer questions from cops and prosecutors. Let your lawyer do the talking.
Talking rarely if ever helps you. The cops are there to get you convicted, why help them?
2. THE RIGHT TO BAIL -
You have the right to bail (no matter how excessive) unless there is:
(A) No bail hold, if you are on parole, probation or an immigration hold (I.C.E.); or
(B) The Judge says no bail (and that’s only in extreme circumstances).
3. THE RIGHT TO A LAWYER -
If you cannot afford one, the Court will appoint one to you; generally a Public Defender. This will happen at your arraignment. What’s an “arraignment”, we’ll get to that a little later under "Terminology”.
4. THE RIGHT TO BE FREE FROM UNLAWFUL SEARCH AND
LEAVE ME ALONE: Unless there is “probable cause” (or a search warrant), a cop can’t search you, your car, office or home, and you do not have to consent to such searches.
(Note: With a search warrant, you’re SOL and such searches can be conducted. Also, note that if you’re arrested, you can be searched ("pat down") and if you are in a vehicle and that vehicle is towed, an “inventory search” will be conducted. If any contraband (illegal stuff) is found, it will be booked as evidence. Also, under some circumstances, the cops can search your vehicle, before it’s towed.)
REMEMBER: No consent is necessary for a “Probable Cause” search.
MIRANDA WARNINGS need only be given if you are asked direct questions regarding your arrest, and/or detention and/or participation in a crime.
Always “Lawyer Up” ... again, be polite but do not answer questions.
Cops will often tell you talking is in your own best interest. (No it isn’t Wait for your lawyer, it will help you in the long run.) Cops will also say, it’s your chance to tell your side of the story. (Oh really? Your side of the story can be better told by your attorney.)
Cops in California can legally use “deceptive investigative techniques” to get you to talk (that is, a straight faced lie to you). Example: “We have witnesses” (when they don’t); “your fingerprints are on the weapon, contraband, etc.” (when they’re not); “Your partner is ratting you out so you’d better rat out him/her first” (when in fact no one is ratting); and the list goes on.
Other rights, i.e., a jury trial, confrontation of witnesses against you, your right not to incriminate yourself goes hand in hand with your right to remain silent.
TERMS YOU’LL NEED TO KNOW:
Defendant - That’s you.
Arraignment - 1st court appearance when you’re told of the charges against you. That’s when the court will appoint the Public Defender to represent you if you cannot afford an attorney. Of course, you can always hire one.
Discovery - Your lawyer is provided with a copy of the following documents:
1. The Complaint (the document that specifically tells you what you are being charged with, i.e., violation of a specific code section. (You know, People of the State of California vs. “You”.)
2. Arrest Report (Cop Shops version of the events that got you busted. (Note: That’s only the “initial discovery”. Usually there is a lot more and its your attorney’s job to get it.
Felony - (Robbery, homicide, rape, burglary, etc.):
Serious criminal offenses that can potentially send you to state prison. (Note: Numerous charges in California that are felonies, under 17(b) of the Penal Code (P.C.) can be plead as a misdemeanor.)
Felonies are basically a two-step process:
Step 1: Arraignment and Preliminary Hearing.
Step 2: Second arraignment (in the trial court) and trial.
Preliminary Hearing (“Prelim”) - This is a hearing (not a trial, no jury) to determine if a trial is warranted (and it almost always is warranted as far as the prelim judge is concerned). The standard of proof necessary to “bind you over for trial” is well below proof beyond a reasonable doubt. IT IS NOT A FINDING OF GUILT but merely a “probable cause” hearing.
Misdemeanor - This is a less serious criminal offense that at most can land you in county jail. There’s no preliminary hearing, just an arraignment and then a trial.
Plea Bargain - This is an agreement between the Prosecutor and the Defendant as to charges and/or sentence at which point the defendant pleads no contest or guilty. Applies to both felony and misdemeanor charges and can be negotiated almost at any time (even in the middle of a trial).
Generally, plea bargains are made prior to trial and thus avoids a trial.
Wobbler (17(b) P.C.) - A felony that can be charged or reduced to a misdemeanor.
Summary Probation or Informal Probation -
This means you do not have a probation officer (P.O.) to report to. You do not need permission to move, change jobs, leave the state, etc. All you need to do is what the court has ordered you to do (ie., pay the fine, enroll and complete DUI school, anger management classes, community labor, etc.) and don’t get busted.
Formal Probation -
You have a probation or parole officer and must comply with the terms and conditions through the Probation Department.
No Contest Plea: Not admitting guilt (although the court will find you guilty) but just saying your not contesting the charge.
(Note: A No Contest plea cannot be used against you in a subsequent civil proceeding, i.e., lawsuit (hit and run, assault, etc.).
Guilty: By plea (and you never plead guilty, only no contest) or verdict means you admit the crime or a jury says you committed the crime.
(Note: A plea or verdict of guilty can and most certainly will be used against you in a lawsuit, if there is one.)
City Attorney - Prosecutes misdemeaners only.
District Attorney - Prosecutes felonies and in some jurisdictions, misdemeanors.
California is a "code" pleading State. For example: "P.C." means "Penal Code"; "H & S" means "Health and Safety"; "V.C." means "Vehicle Code".
DRIVING UNDER THE INFLUENCE (D.U.I.) - (PLEASE DO NOT CALL IT A 502) -
A well known “cash cow” for the County, generally constitutes two charges:
(1) 23152(a) Vehicle Code (V.C.) - It is not DRUNK DRIVING. You do not have to be falling down drunk or dancing with a lampshade on your head to be convicted of this charge.
The law merely says you had enough alcohol or a drug (including prescriptions) and/or a combination of both to impair your ability to drive (i.e., goes to conduct).
(2) 23152(b) VC - This one states all you need to be guilty is have a Blood Alcohol Concentration (B.A.C.) of .08 or more (content). I know bikers who can knock off a bottle of Jack Daniels, look you dead in the eye and perform ballet on their Harleys, and still they’d be convicted of the (b) charge if their B,A.C. is .08, or more (i.e., goes to content).
(Note: the felony D.U.I. charges would be 23153(a) and (b) V.C. However, this is an example of 17(B) P.C. wherein it can be charged or reduced to a misdemeanor .)
The usual scenario is as follows: The cop makes a traffic stop (swerving, blowing a stop light, speeding, etc.) and almost all reports say the same thing: the cop observes the driver to have red and watery eyes, slurred and thick speech, odor of alcohol, conducts a Nystagmas test (“the follow my finger or pencil with your eyes, right to left, left to right). The cop asks you to step out of the car and asks a , series of questions about being under a doctor’s care, any physical disabilities, when did you sleep last, for how long, what did you have to eat, when did you eat, how much have you had to drink (usually its two beers), when did you start and stop drinking, etc. Then usually that’s followed up with so called Field Sobriety Tests (F.S.T.s). You know, walk the line, finger to nose, leg lifts, etc. This is supposed to show physical coordination, hand/eye coordination, etc. Although I swear I have yet to know of anybody driving while doing a finger to nose test, etc.
Next usually comes the Preliminary Alcohol Screening (P.A.S.) Test. That’s when you blow into a little hand-held device (always held by the cop) that “detects” alcohol and the screen or device shows the presumptive B.A.C. results .08, .10, .07, whatever).
Then the arrest and trip to your local jail where you get to blow into the big breath test machine (this one has a paper readout showing the B.A.C.).
(Note: If your B.A.C. is less than .08, you can still be charged with count 23152(a) V.C. Remember, 23152 goes to conduct, not content).
If you refuse a breath test, you can opt for a blood test or under certain conditions, a urine test.
Presuming you are not under a court order to do so (which generally means you’re still on probation for a prior D.U.I.) you do not have to:
(1) Answer any questions (other than show I.D., proof of insurance and registration);
(2) Take the F.S.T.;
(3) Take the P.A.S. Test. You DO HAVE TO take either a blood or breath test at cop shop (the Police Station) and NO you do not have the right to have a lawyer present or consult with one before taking the test.
(Note: Refusal to take the blood or breath test, if found to be a true, results in a one year license suspension and that’s for a first time D.U.I.)
At the time of the arrest, the officer will take your “hard copy” license and give you a “temporary license” (usually a pink sheet of paper). Read it carefully because it now involves the D.M.V. and your rights to an Administrative Per Se (“A.P.S.”) hearing.
Note that D.U.I. convictions are “priorable offenses” which means a prior conviction, even though you’ve already been punished for it can be used against you to increase your sentence (i.e., jail, longer probation, longer D.U.I. school, etc.). Also be aware the “tail” of a D.U.I. conviction is 10 years, that is, a prior D.U.I. will stay with you for 10 years!
Also, a lesser included offense of D.U.I. is called a “wet reckless” and while the immediate consequences are less than a D.U.I., it will also stay with you for 10 years and act as if it were a prior D.U.I. for sentencing purposes.
D.M.V. and A.P.S. HEARINGS - 10 DAY RULE -
YOU HAVE ONLY 10 DAYS FROM THE DATE OF ARREST TO REQUEST AN A.P.S. HEARING WITH THE CALIFORNIA DEPARTMENT OF MOTOR VEHICLES .
The temporary license will say you can drive for 30 days then your license will go into suspension. However, when you request an A.P.S. (Administrative Per Se) hearing within 10 days of the arrest, you can “stay” (postpone) the suspension pending the outcome of the hearing. If you win the hearing, you keep your license without suspension.
If you fail to request the hearing within the required time, the D.M.V. will automatically suspend your license after 30 days. Therefore, it is important that you request the hearing within the 10 day period, you do not have the hearing within the 10 days, but merely request it.
When you retain an attorney to represent you for your "drunk driving"
charge(s), he/she most likely will also handle your A.P.S. hearing. (I do.) Again, remember you have only10 days from the date of arrest to request said hearing .
The A.P.S. hearing can be by telephone or in person. Witnesses can be subpoenaed, testimony taken and documents submitted as evidence. Here’s the catch though, the hearing officer (acts as "Judge") is also the “Prosecutor” and rules on objections, etc. They’re also a D.M.V. employee, whose agency makes money for every license suspended when you apply to get your license back. And here’s the kicker, the hearing officers are not lawyers.
Please be aware that your need to drive or to protect your job is irrelevant as far as the D.M.V. is concerned!!!
After the hearing, the hearing officer will make a decision and mail it to your attorney.
*NOTE: The above is not an exhaustive review of all rights and what they mean. It is intended merely to be an overall general discussion of your rights. Each case is individual and must be thoroughly discussed with your attorney. Good luck, and CALL ME.