Criminal Case

What exactly are my charges?

Criminal charges can vary throughout a criminal case. Initially, the charges that are levied against someone who is arrested are chosen by the arresting officer. Arresting officers are not attorneys, such as a district attorney or criminal defense attorney, but generally have a great deal of experience in determining the initial appropriate criminal charges for someone who is being arrested. These charges, decided upon by the arresting officer, form the initial basis for bail. Bail is commonly set by what is referred to as a bail schedule which can vary from county to county. When an arresting officer brings someone who has been arrested into jail, the jailer will review the charges specified by the arresting officer and bail will be set accordingly.

Usually, between the time that a person is initially arrested and when they first appear in court, the arresting officer=s police report has been reviewed by a supervisor (who may also change the charges specified) and then the report is reviewed by a District Attorney who makes the final decision as to which charges will be brought against an individual. These charges are then specified in what is referred to as the Criminal Complaint and those are the charges that a defendant will face at their first court appearance or arraignment. All of these proceedings occur generally prior to a client speaking with a criminal defense attorney or DUI attorney.

Later on in the case, there can also be changes in the charges as a result of different criminal processes. As an example, at a preliminary examination in a felony case, the judge may dismiss certain charges and, under certain circumstances, after the preliminary examination, depending on the evidence produced at the preliminary examination, the District Attorney may actually add charges.

Is there more than one way to make bail?

Each county has a bail schedule that exists for all bailable criminal charges. A copy of the bail schedule can sometimes be seen at the jail and is always available from the Superior Court clerk's office. Those who are arrested can "post" or pay the amount of bail listed in the bail schedule to get out of jail as quickly as possible before appearing in court. Speaking with a criminal defense attorney at this stage of the process is crucial.

If a defendant stays in jail until they go to court, the bail may remain the same, be increased, be decreased or be eliminated completely by a client being released on their OR (own recognizance) or SOR (supervised own recognizance). It is at this stage, early in the case, that the assistance of a criminal defense lawyer can be extremely helpful. In setting bail, the court will consider public safety (which is the most important consideration required by law), an individual=s previous criminal record (if any), the seriousness of the offense and the likelihood of the defendant appearing at every court appearance.

There are basically three different ways to post bail. First, a defendant or someone on the defendant's behalf, can pay the full amount of the bail generally by personal check, cashier's check, money order, etc. Each county has different policies regarding how the actual bail may be paid. If bail is to be put up by the defendant's friends or family, a call should be made to the jail to determine what methods of payment are acceptable.

The second method of making bail which is fairly unusual, is the deposit of State or U.S. Government bonds with the court or the pledging of equity in real property. Pledging real property requires the assistance of a criminal defense lawyer to conduct a court hearing to determine the equity in real estate. As an example, if a home is worth $500,000, and there are $300,000 of mortgages or liens against the property, the property has equity of $200,000. Bail involving the pledging of real estate equity is allowed when the value of the equity is twice the size of the bail. As an example, if the required bail is $100,000, then $200,000 in equity must exist.

The bail hearing in court required for this type of "property bond" will almost inevitably involve the assistance of a criminal defense attorney as mentioned above and entails proof as to both the value of the property and the varying amounts owing against the property through the submission of assessor=s records, tax records, appraisals, preliminary title reports, and testimony. A knowledgeable criminal defense lawyer will be able to determine which documents must be gathered and submitted to the court.

The third and most common method of bail is the use of a bail bondsman who will provide a guarantee to the court that the full amount of bail will be provided in the event of the defendant's failure to appear in court. This type of bail generally requires a premium of 8% - 10% payable to the bail bondsman and is non-refundable.

The advantage of this type of bail is that a large amount of assets are not tied up or entangled and a bail bondsman can generally secure the release of a defendant within 3-4 hours.

Did the Police legally arrest me?

United States Citizens cannot be arrested without legal justification or what is commonly referred to as probable cause. An arrest can be made with a warrant or without a warrant. Details as to what amounts to probable cause in each individual case will often be disputed by a criminal defense attorney.

One of the most common ways to be arrested is on an arrest warrant issued for a specific person. The arrest warrant is usually issued by a judge or a magistrate before a criminal defense attorney is involved in the process. The warrant contains instructions requiring the police to bring a specific individual before the judge. If the judge or a magistrate are not available, then the person must be brought to the judge or magistrate within 48 hours, excluding weekends and holidays. When a judge or magistrate receives a request for an arrest warrant, they must also receive a statement of facts upon which the judge or magistrate may find that there is probable cause to arrest that person. The judge will independently review the facts that are set forth under oath in the warrant, and will make an independent judgment as to whether or not they are convinced that an offense has been committed and that there is probable cause that the person specified in the warrant committed the crime. These are facts which a criminal defense lawyer may dispute. The judge will consider the totality of the circumstances in the arrest warrant. The standard of whether or not there is reasonable cause or probable cause to issue an arrest warrant is whether or not a reasonably prudent individual would entertain a strong suspicion that a crime was committed and the individual set forth in the warrant committed it.

The most common way an individual gets arrested is by a warrantless arrest. Even if a police officer does not have a warrant when they arrest somebody, they must have probable cause for the arrest. Probable cause for an arrest is also an issue that is often contested by a criminal defense attorney. Probable cause for an arrest usually is supplied by information that the police officer receives at or shortly after the alleged commission of a crime. The facts that are known to a police officer must be sufficient to allow the officer to independently form an honest opinion that probable cause exists for the arrest.

As criminal defense lawyers are aware, as of January 1, 2012, the police will be allowed to arrest someone suspected of carrying a loaded firearm without a warrant even though no other crime was committed in the officer's presence. Further, they can also arrest a person suspected of carrying a concealed firearm if it is within the inspection area of any airport.

A DUI lawyer who has a specialized knowledge in DUI cases must deal with the exceptions that are carved out for DUI cases due to the public's concern in this area. In DUI cases, an arrest can be made by an officer who has probable cause to believe that a person has been driving under the influence of alcohol and/or drugs, even though the drunk driving act was not committed in their presence, if one or more of the following exceptions exist:

1. If the person has been involved in a traffic accident.
2. If the person who is observed to be in or around a vehicle that is, at least partially, obstructing a roadway.
3. If the suspected person may not be apprehended unless an arrest is made immediately.
4. If the person may cause injury to themselves or damage property, if released.
5. If the person may destroy or conceal evidence unless they are immediately arrested. (This exception is widely used by police officers in DUI cases pursuant to the argument that if the individual is not arrested and taken into custody to do a breath or blood test, evidence of the DUI will be destroyed because over time alcohol is substantially or completely eliminated from the defendant's breath and/or blood).

Was the search of my person, car or home legal?

In a criminal or DUI case, a criminal defense attorney or DUI attorney will look very carefully to determine if there are any suppression issues. The reason is simple. If it can be successfully argued at a Motion to Suppress hearing that something should be suppressed, the evidence will be thrown out of court and the prosecution will not be allowed to use that evidence at trial. The suppression may be of any tangible or intangible evidence that was obtained by the police as a result of an unlawful search or seizure. This is a common motion brought by a DUI attorney or criminal defense lawyer. Items that can be suppressed include observations, statements, testimony or physical evidence obtained as a result of an unlawful detention, arrest or search. However, as can be explained in more detail by a criminal defense lawyer, evidence that has been ruled suppressed by the court can be used by the court in a parole revocation hearing, to impeach someone in a trial, or could be considered by the court at sentencing.

Generally, for a DUI lawyer or criminal defense attorney to bring a suppression motion, the defendant must have a reasonable expectation of privacy in the items that were acquired as a result of an illegal search or seizure. The question basically is, "Did the search and seizure in this particular case violate the rights of the defendant who wants to exclude or suppress the evidence?" and "Did the police violate the defendant's legitimate expectation of privacy?"

As criminal defense attorneys and DUI lawyers are aware, not all items have a legitimate or reasonable expectation of privacy. As an example, there is no reasonable expectation of privacy in abandoned hotel rooms, in a stolen car, under the driver's seat of a vehicle if you are a passenger, in a common backyard of an apartment building, or as to information that was on the outside of an envelope, etc.

Cases standing for the proposition that a person had a reasonable expectation of privacy and, therefore, could successfully suppress evidence that was found by the police include: a search of personal effects brought to school by public school students, items found when police officers walked into the side yard of the defendant's house and looked into his open window, evidence that was found in a search and seizure that was arbitrary, capricious or harassing even though the person was on parole, items found in a tarp structure which was the equivalent of a large tent, items found in rented premises belonging to a tenant even though the tenant was subject to a restraining order directing the tenant to stay away, etc.

If the criminal case involves items discovered as a result of the issuance of a search warrant by a judge, the criminal defense attorney can file a Motion to Traverse the warrant, which is considered a motion to determine whether any of the information in the search warrant affidavit is false. The criminal defense attorney may also file a Motion to Quash the warrant, which challenges the sufficiency of the information that is assumed to be true as set forth in the affidavit attached to the warrant. If the facts set forth in the warrant are insufficient, the warrant can, in essence, be cancelled and any items that were discovered or seized pursuant to search warrant will be suppressed.

As a criminal defense lawyers, we are aware of hundreds of legal cases that illustrate what is or is not protected by California or Federal law depending on the court's view of the defendant's reasonable expectation of privacy. A diligent criminal defense lawyer or DUI attorney will examine these issues in detail. Successful application of the suppression laws can lead directly to a dismissal of a criminal case.