Criminal Law

Criminal Law

Criminal defense is a broad area of law which encompasses acts which are deemed criminal offenses. It is usually resolved in state court, but some offenses are federal and those charges are brought in the federal court system.

First contact with police may involve physical arrest. In order to be arrested, there must be “probable cause” or a reasonably belief that a crime has occurred. You must remember two rights while under arrest. (1) The right to remain silent and (2) The right to an attorney. You are under no obligation to help the police. Remain silent and ask to speak with an attorney.

If you are not at risk of a repeat offense, law enforcement may choose to give you a notice to appear in court, may book and release you, or may book and keep you in jail until a preliminary hearing can be sought, usually within 24 hours.

First appearance:
Once arrested, you are scheduled to appear in front of the judge within 24 hours. The judge reads the charges and make a probably cause determination. It is important to have a lawyer to attack the sufficiency of probable cause. This may get you released or at least a lower release bond.

Bail / Bond:
The purpose of bail is to be sure that you will appear at your scheduled court appearances. You have a right to bail, unless you are charged with a capital crime. You may be offered ROR (release on your own recognizance).

After formal charges are filed, an arraignment is scheduled. This is not a trial or chance to present evidence. It is a chance to enter a plea. If you have hired an attorney before this point, you may not have to appear in court.

Guilty, not guilty and no-contest. The pleas may be negotiated into a plea agreement. In that case, a plea colloquy is done to ensure the defendant knows the charge, the penalties, and the court must be satisfied that the plea is voluntary. The plea may affect immigration status. You may be offered pretrial diversion / pretrial intervention / drug court diversion / house arrest / jail / fines / and court costs.

If this process is elected, the state and the defense, must make full and complete disclosure of witnesses and evidence. Depositions can be requested in felony cases.

Right to Speedy trial:
Speedy trial is offered either with or without demand. Speedy trial without demand is usually less than 90 days of a misdemeanor arrest, and within 175 days of a felony arrest. Speedy trial with demand, is usually brought within 60 days, regardless of the charge.

Before a trial motions may be filed on your behalf, such as: motions to dismiss, motions to continue, motions to suppress evidence, and motions to suppress confessions.

The Trial:
You can have a jury or bench trial. If a jury trial is selected, jury selection occurs. Opening arguments are made, presentation of evidence is done, a motion for judgment of acquittal, then closing arguments, and then the court or jury deliberates the case.

Second degree misdemeanor sentencing:
Punishable by no more than 60 days in jail, six months of probation and a $500 fine.

First degree misdemeanor sentencing:
Punishable by no more than one year in jail, one year probation and a $1000 fine.

Third degree felony sentencing:
Punishable by up to five years in prison, five year’s probation and a $5000 fine.

Second degree felony:
Punishable by up to fifteen years in prison, fifteen year’s probation and a $10,000 fine.

First degree felony:
Punishable by up to thirty years in prison, thirty year’s probation and a $10,000 fine.

Life felony:
Punishable by life in prison without the possibility of parole, or probation for life and a $15,000 fine.

Capital Felony:
Punishable by death or life in prison without the possibility of parole.

Guideline Score sheet:
Sentencing is based on a score sheet. If you have a prior record, it can increase your sentence. If you are charged and found guilty of more than one crime, the sentences can run together or separately.