July 27, 2015

Frequently Asked Questions

by Silva

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Q. My child has been arrested how can I make sure their record remains clean?

It is always difficult to watch a child suffer, and having your child arrested is not any easier. The system considers anyone under the age of 18 as a child. Children are not held in jail–but held in juvenile hall. There is a different system in place for juveniles that focuses on rehabilitation rather then punishment. There are also certain crimes that render a child unfit for the Juvenile system, and thus the child could be tried in the adult system in serious circumstances. That is why it is so important to hire an attorney with actual experience in juvenile practice. The justice system for children is very different than the adult justice system, thus an attorney for your child should have actual experience in defending children. As soon as a child is arrested an experienced attorney knows the tools necessary in getting your child informal options that can include community service, staying out of trouble, going to school every day without issue, counseling and other less stressful avenues to avoid juvenile Court. If a child does end up in Court, most crimes charged are sealable, and not strikes but a child will be placed on probation for a period of six to twelve months, with progress reports done in the Court. If a child performs well without issue, a child can have their records sealed and thus not public–a skilled attorney is essential in this process to make sure the juvenile court recognizes and rewards the child’s good behavior and terminates probation.

Q. I’ve been arrested, what should I do?

First, remain silent. Just because you are arrested, it does not automatically mean charges will be filed against you. Staying quiet, however, is the most important decision you can make If you are ever questioned by police, do not give a statement. Be polite, calm, and state, “I am choosing to remain silent, I want a lawyer.” Once any statements are made, those admissions can very well be enough to have the case filed. Do not consent to searches, this too allows officers to do anything they want to your property and you, and by giving them consent you make their jobs even easier. Once you are arrested, it is true the police no longer need your permission or a warrant to search–they are allowed to search your person and what is within your immediate control–however, they still will need your permission or a warrant to search certain things, for example a cell phone, so, never consent to a search when the officers ask for your permission. Never flee or run–this makes things worse–additional charges can be added, and worse you can be hurt–tased, shot, beat, you name it. Once in a holding cell, stay quiet as well. Anyone can be a snitch and the jail cell or even the backseat of the patrol car could be wired for sound–save the conversations with your lawyer, which are confidential and cannot hurt you. Also, once you are out, do not post about your case on social media. District Attorneys, City Attorneys and yes police monitor social media–and what you say or WRITE can and will be used against you.

Q. How do I bail out of jail?

Once arrested and jailed, there is a process allowing the person arrested to get released from jail. The accused may be released from jail for exchange of money–hence BAIL. A promise of property also works as a promise you will return to Court for all hearings. You cannot miss a court date when released on bail. If you make all court dates your bail is refunded to you whether you are found innocent or guilty. The bail amount depends on the jurisdiction where you are arrested and the Judge. Other factors that decide how large the bail amount is is the seriousness of the crime, your record and previous or current bench warrants. A judge can also release the accused without the requirement of posting bail–called being released on your own recognizance (“OR.”) If you cannot afford bail–or have no property to post, you can hire a bail bonds agent. A bonds agent promises to pay the full amount of bail to the court if you do not show up to Court, thus the bonds agent will have to find someone responsible for paying any costs they have to incur to track you down. In exchange for posting the full bond, the bonds agent will ask you to pay about eight to ten percent of your bond which is NONREFUNDABLE. So why hire a bonds agent? Because you can get out of jail for far less then paying the full bail amount. Your attorney will have a trusted bonds agent, so do not forget to contact your attorney if you are interested in bonding out of jail.

Q. I have My First Court Appearance–What Should I expect?

The first Court date is called the arraignment. That is where an accused will enter a plea (not guilty, guilty or no contest), bail and release can be determined, and a future court date is set: either a pretrial or in a felony case, the preliminary hearing. You will also be advised of your Constitutional rights and know your specific charges. In most misdemeanor cases, your attorney can make the appearance on your behalf without you having to be present.

If you are charged with a felony, there are essentially two arraignment hearings –one occurs at the very start of your case. The second occurs after the preliminary hearing. If you are in custody, you MUST be arraigned within 48 hours (not including weekends or holidays). Once you enter a plea of not guilty, you have the right to a speedy trial. In a misdemeanor trial, a speedy trial must be done within 45 days unless your defense requests a delay. If you are in custody, the trial must be done within 30 days, unless your defense requests a delay.

In a felony case, you have the right to a preliminary hearing within 10 days of your arraignment. After your preliminary hearing, you also have an “Information Arraignment,” in which case you have the right to trial within 60 days of this second arraignment.

Q. So What Is A Preliminary Hearing?

The DA presents evidence and witnesses to the alleged crime–and the standard to determine if there is enough evidence to justify holding the defendant to answer for the alleged crime. The Defense has the opportunity to cross examine all witnesses and even call their own witnesses. By the end of the hearing the Judge must determine if there is enough evidence to allow the case to enter the next stage of the proceeding (information arraignment) before the matter is set for trial. If there is insufficient evidence presented at the preliminary hearing, the Judge will dismiss the case.

Q. I got my first DUI, what should I do–what can I expect?

Hire an attorney if you can afford one. DUI law is not always straight forward–there are many defenses and scientific evidence that can prove essential in getting your DUI reduced or dismissed. A skilled attorney can challenge your case in a variety of ways, from the validity of the stop, to the reliability of the alcohol tests.

To get a DUI, the state must prove that you were driving a motor vehicle, and under the influence of alcohol or drugs, or had a BAC of .08% or higher at the time of driving.
If you are convicted of a DUI, and it is your first one, and there was nobody who was hurt or injured you could expect to receive typically 3 years of informal probation; DUI school ranging from 3 to 9 months (typically 3 months), A fine of around $2000 depending which county you are arrested in and a 6-month license suspension, with the possibility of a restricted license after 30 days from the DMV.

A first offense DUI in California is typically a misdemeanor crime unless someone is seriously injured or dies. A person charged with DUI is entitled to a jury trial before being convicted in court, as well as a hearing at the DMV before a license suspension is imposed.

At trial the prosecutor must show that you were driving while under the influence of alcohol,
you performed poorly on field sobriety tests and you had objective symptoms of intoxication like bloodshot eyes, slurred speech, a smell of alcohol on your person etc. A breath or blood test indicated the person had a BAC at or above .08.

1st-time DUI charges can be reduced to a lesser offense (such as a “wet” reckless or a dry reckless, or exhibition of speed and in some cases get the case dismissed altogether.

Q. What should I do if I am pulled over for a DUI

As mentioned before, exercise your right to remain silent. If the officer asks you how much you had do drink, stay calm, polite and state, “officer are you arresting me or may I go free?” Do not lie, if you have been drinking it is likely there is a smell of alcohol or you drove erratically–but remember everything you say is in the police report. Admitting how much you had to drink makes the police’s job easier, and denying drinking anything could make you seem like a liar later in the court proceedings. If they want you to do sobriety tests, you may politely refuse, for even sober people fail those tests. You should not refuse a blood, urine or breath test–by doing so, the DMV will suspend your license for one year and the penalties against you in court could be greater. PLEASE NOTE: If you have multiple DUI convictions, and are at risk for being charged with a felony DUI with priors you may consider refusing the chemical test and sacrifice your license for a year rather then face felony charges and possible prison time.

Q. The Police NEVER Read Me My Rights–case dismissed, right?

Wrong. Please note, the police do not have to read you your rights–the law requires them to do so before they QUESTION you about your involvement in the crime. If you are interrogated, and you are not Mirandized, then any statements you make can be challenged and thrown out in court.

Q. Should I hire an attorney or go with the public defender?

Public Defenders are licensed attorneys who have a lot of knowledge and experience. They are assigned to your case, and unfortunately you cannot chose who is the one representing you. Typically public defenders have a very heavy case load–they handle a lot of cases every single day. They usually do not give the time to update their clients on what is happening on their cases, and if you do not like your public defender you cannot not request a new one. You also cannot talk to your public defender before your arraignment–you usually will meet them at arraignment–thus discussions about bail, a case strategy before you even walk into the courthouse does not happen. The Public Defender does a valuable and important service of representing those who cannot afford hiring an attorney. If you can afford an attorney, hire a skilled, capable defense firm that listens to you and forms a strategy you will be comfortable with. Your attorney should fight for your rights, and give you comfort that you are receiving the best representation possible.