Criminal Defense FAQ

Get Answers to Important Questions

What exactly are my charges?

Criminal charges can vary throughout a criminal case. Initially, the charges that are levied are chosen by the arresting officer. These charges form the initial basis for bail, which is commonly set by a bail schedule that 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); the report is then 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; 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.

Later 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, 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, 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 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. The bail hearing in court required for this type of "property bond" 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.

• 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?

Citizens cannot be arrested without legal justification or "probable cause." An arrest, however, 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 way to be arrested is on an arrest warrant, which is usually issued by a judge or a magistrate before a criminal defense attorney is involved. 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 that a 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 to get 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 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 of January 1, 2012, police can 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.

In DUI cases, an arrest can be made by an officer who has probable cause to believe a person has been driving under the influence of alcohol and/or drugs, even though drunk driving 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; and/or
5. If the person may destroy or conceal evidence unless they are immediately arrested.

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

A criminal lawyer can 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.

Items that can be suppressed include the following:

• Observations
• Statements
• Testimony
• 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 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 attorneys 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
• Information that was on the outside of an envelope.

If the case involves items discovered as a result of the issuance of a search warrant by a judge, a 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. They 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.

Can't I refuse to be arrested if the police are wrong?

No. Before 1957, the general rule was that if an arrest was unlawful, a police officer was not properly doing their duty, and therefore no crime was committed by a person who resisted with reasonable force. Also, no crime was committed by anybody who helped that person resist. That is not the rule now!

In 1957, the legislature passed Penal Code §834a which provides that if a person knows or reasonably should know that they are being arrested, that person cannot use force to resist that arrest even if the arrest is unlawful. Under the old rule, the courts determined that people were finding a ready excuse to resist or escape, which inevitably led to violence, riots, etc.

Further, recent court decisions have established that there is also no right to use force to resist an unlawful detention by a police officer. A detention generally occurs when a police officer makes contact with a person and leads that person to believe that they are not free to leave. The courts have concluded that since an arrest is a greater infringement on your freedom than a detention, if there is no right to resist an arrest then there is no right to resist a detention.

If I have my conviction expunged, can I possess firearms again?

No. It is illegal for any person convicted of a felony to possess or use a firearm for the rest of their life. An expungement or a dismissal of conviction does not restore the right to possess a firearm or ammunition to someone who has a felony conviction.

Although some language of the applicable statute (PC 1203.4) refers only to concealable firearms (handguns, pistols, revolvers, etc.) the First District Court of Appeals has recently ruled that the statute's language does not allow an expungement to restore a convicted felon's right to possess any firearms (concealable or not). The only way to restore this right is to receive a pardon from the Governor's Office. A pardon is not available to someone who has been convicted of a felony involving the use of a dangerous weapon.

Other circumstances which can cause a lifetime firearm prohibition, include a conviction of:

• Assault with a firearm; AND
• Discharge of a weapon at an inhabited dwelling or brandishing a firearm.

In addition, anyone who has suffered two or more misdemeanor convictions for brandishing a firearm is precluded from owning a firearm for life. A 10-year firearm prohibition can result from a conviction of a misdemeanor.