Answer: If you are accused of a crime by the government you have a number of rights.
Under Miranda v. Arizona before the police take you into custody and question you, they must tell you:
(1)You have a right to remain silent.
(2)Anything you say can be used against you in court.
(3)You have a right to an attorney.
(4)If you can’t afford an attorney, an attorney will be appointed for you.
I have often had clients say to me, “The police didn’t read me my Miranda rights.” Well, you have a right to remain silent whether the police have warned you or not. If the police question you, tell them that you do not want to speak to them until you have spoken to an attorney.
Under the Fourth Amendment you have the right to be free from unreasonable searches and seizures. This means that, except in exceptional circumstances, the police may not enter your house or place where you stay without a warrant and probable cause. It also means that the police may not stop and detain you without reasonable suspicion. It also means that the police have no right to search your bag, pockets, or car without probable cause. If the police ask if they can search you, YOU HAVE THE RIGHT TO SAY NO. If, however, you are on parole or probation, and an EXPLICIT condition of your parole or probation is that you are subject to search then you must submit to the search. Note, that that search condition must be explicit. Also, the search term might be limited to certain items, i.e. person, car, and belongings, but not others, i.e. home. You need to look at the terms of the sentencing order or talk to a lawyer if you are not sure whether you are subject to searches as a term of probation/parole. You have the right to a trial by jury in which your criminal defense attorney can cross-examine the witnesses against you, call witnesses on your behalf, and present evidence. The prosecution has the burden of proof. You are entitled to be found NOT GUILTY unless every element of the crime charged against you is proved beyond a reasonable doubt. You have a right to a speedy trial. You have the right to testify or not to testify. These are just some of the rights that a criminal suspect has.
Answer: If you are arrested and taken into custody, you must be brought before a magistrate or judge quickly usually within 48 hours. In court, you will be advised of the charges against you. You will be informed of your right to hire an attorney. The judge will either release you on your own recognizance (“OR”) or set bail. In either case, you must come to all of your court appointments. The failure to do so can result in your arrest on a bench warrant, and will make it more hard for you to get OR or bail you can afford for the rest of your life. Once bail is set, you can either post the full amount of the bail. You will get it back at the completion of your case or it will be forfeited if you flee or evade prosecution. Alternatively, you can go to a bail bondsman and pay the bondsman one tenth of the bail amount. If you use a bail bondsman, you won’t get the money back.
Answer: If requested by the police, you must get out of your car and present your license and registration. You do not have to take the field sobriety tests. You do not have to answer the officer’s questions about where you’re going, where you’re coming from, if you’ve had anything to drink and how much, etc. You also don’t have to submit to the Preliminary Alcohol Screening (PAS) test. But, if the officer arrests you and requests you to take a chemical test, you have to do so or else your driver’s license will be suspended for a year by DMV. (If you are on probation for a previous DUI you’re probably required to cooperate with the officer’s field sobriety investigation as a condition of your probation.)
Answer: Your driver’s license will likely be suspended in thirty days. When you are arrested for DUI, the police officer generally gives you an Administrative Per Se Suspension (“APS”) Order. There are five possible reasons: (1) driving with blood alcohol content (BAC) of .08% or higher; (2) driving with BAC of .01% or higher if you’re under age 21; (3) refusing to take a chemical test at the officer’s request; (4) driving a vehicle requiring a commercial driver’s license with a blood alcohol level of .04% or higher; or (5) or being on probation for certain DUI and drug offenses and having a BAC of 0.01% or higher based upon the preliminary alcohol screening.
The suspension does not go into effect for 30 days, meaning that the APS Order is in effect, a thirty day temporary driver’s license. To challenge the suspension of your license, you must request a DMV hearing with 10 days of the date on which you were given the APS Order.
Answer: You may be eligible for a restricted license. A restricted license permits you to drive to and from work. It depends upon a number of factors.
Answer: An ignition interlock device (“IID”) is an electronic instrument that’s wired to the ignition of your car. You have to breath into the IID to turn on your engine. If it detects alcohol on your breath, the ignition will not start. Beginning July 1, 2010 under a DMV pilot program in four California counties – Alameda, Los Angeles, Sacramento, and Tulare – anyone convicted of a DUI/DWI in court must install an IID in their vehicle. There is an exemption available for persons who do not own or have access to a vehicle. To learn more about the IID requirement and the period of time an IID may be necessary in your case, contact your attorney.
Answer: Yes. Conversations between you and your attorney that do not include a third person are totally confidential. As your attorney, I would never reveal such conversations without your consent. If a third person is included in the conversation, a judge could require the contents of the communication to be disclosed. The same goes for written communications like letters, memos, texts, and email. As long as no third person is a recipient of the communication, written messages between you and your attorney are absolutely confidential.
Answer: The legal fee I charge varies from case to case and depends on the seriousness of the charge and the amount of work the case is expected to take. I generally charge a flat fee which is payable at the beginning of the case. Some defense attorneys ask you to pay an additional amount if your case goes to trial. I don’t. You have the constitutional right to a jury trial. The last thing I want is for a client to tell me that he/she wants to go to trial, but can’t, because he/she can’t afford to pay the additional attorney fees. So I negotiate a flat fee amount that’s due at the beginning of the case. There can be other costs and expenses besides attorney fees. Sometimes these can be substantial. Examples include expert witness fees, investigator fees, and court reporter fees. It is the client’s responsibility to pay or reimburse the attorney for out-of-pocket expenses incurred in the case.
Answer: Probably. Most of these phone calls are recorded and forwarded to the district attorney. The police frequently use what is called a “pretext phone call” to try to get a confession over the phone. This occurs in alleged sexual assaults and consists of the alleged victim calling the alleged perpetrator and asking him to apologize or explain why he did something.
Answer: No. In most situations the police need either your consent or a search warrant to enter your house. Police officers may ask you permission to search. You can say no. Similarly, in most situations the police need your consent or probable cause to search your car. Police officers may ask you permission to search and you can say no.