By Joshua Baskin | Orange County Criminal Attorney Law Firm
I’ve been practicing in the legal profession for almost a decade now, and one of the things that we get asked about all the time at Orange County Criminal Attorney Law Firm is “have my rights possibly been violated” when the police came, and “now what happens to me after I am arrested.” Then a key question everyone should be asking is “how soon in the process should I seek guidance from a criminal defense attorney.”
Something that we stress about at Orange County Criminal Attorney Law Firm to potential clients, friends and families, seek professional legal assistance as early as possible in the process. Retain a knowledgeable and experienced attorney sooner rather than later. By retaining Orange County Criminal Attorney Law Firm’s services early in the pre-filing process, we can guide you through all the questions that may arise, represent you during any possible questioning or interviews that occur, and continue representation should charges be filed. The earlier our firm is involved, the more information we can obtain, review with you and study different avenues to resolve your case. Also, the more pressure we can put onto the arresting and prosecuting agency to potentially stave off the case earlier in the process if possible.
When you are suspected of committing a crime and the police have probable cause to obtain either an arrest warrant, or propound upon the situation based on the immediacy of the circumstances, an arrest can occur. An arrest occurs when the police takes you into custody and you are no longer free to walk away from the arresting office. This is more than being detained and being a suspect, you are now the alleged perpetrator of a crime. People sometimes get confused on what the difference is between being detained versus being arrested.
When you are detained, the police have reason to believe you may have committed a crime or suspect you of committing a crime, but do not have enough evidence yet to arrest you. A person in “stopped” or “detained,” when an officer uses enough force, or a show of authority to make a reasonable person feel he or she is not free to leave. What you must understand however, you have the right to terminate an encounter with a police officer unless you are being detained under police custody or have been arrested. The general rule is that you do not have to answer any questions that the police ask you. It is critical at this point that you do not answer any questions with out proper representation. Here at Orange County Criminal Attorney Law Firm, we are available 24/7 to our clients to assist in any situation you may find yourself in.
During an arrest, upon being placed into custody, you as an individual have rights created to protect you under the 5th Amendment. This is to ensure your right to be free from self-incrimination. These specific rights were dictated out by the U.S. Supreme Court in Miranda v. Arizona in 1966, whereupon someone placed under arrest for the suspicion of committing a crime must be fully read these rights. These rights must be read in the entirety to you, and understood by you, before any questions may be asked. Today, most people know these rights or have heard them stated within the influx of television shows and movies, but to be sure you are aware, they are:
1. You have the right to remain silent
2. Anything you say can and will be used against you in a court of law.
3. You have the right to talk to a lawyer and have him/her present with you while you are being questioned.
4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish.
5. You can decide at any time to exercise these rights and not answer any questions or make any statements.
However, do not take the reading of these rights lightly, or the understanding of what you are entitled to as well. The failure to be read your rights properly can lead to favorable action via a motion to have your case dismissed in Court. Also, a failure to adhere to the advice of these rights can legally bind you to the repercussions of your statements to the arresting agency and be used against in prosecution of your case.
Once you are arrested, you will be taken to a processing location for booking. During this process, the arresting agency will obtain basic information from you, such as address, birthdate, and so on. In addition, it is during this booking process that your fingerprints and mug shot will be taken. The fingerprints provide the arresting agency the opportunity to run a background check on you as well. The background check will enable the arresting agency to obtain your criminal history and ascertain on prior arrests, charges and/or convictions you may have.
After your arrest, a determination is made on whether you will be released and if bail is required to secure that release. This determination depends upon many factors, some of which include the charges for which you were arrested for, the County in which you are in, past criminal history, and so forth. Each county has a bail schedule which determines the amount of bond that must be posted based upon the crimes you have been arrested for.
The preferable release after a booking would be on your “Own Recognizance” release or “OR” release. This means that you are released without bail, on your own accord, with the expectation and promise that you will appear at a future Court date. Should you not appear at a future date, the Court will issue a warrant for your arrest, and the Judge can withdraw your OR release and require that bail be posted accordingly. If your OR is withdrawn or you are required to post bail to be released, then two options become available.
First, you can post the entire bail on your own via family or friends. This is putting the entire designated bail amount paid to the Court to ensure your attendance at all future Court dates. Should you appear at all the required Court dates, this bail amount will be returned to you at the conclusion of your case. However, should you not appear at one of your Court hearings, then the Judge will have ordered the bond and its funds to be forfeited and a warrant will be issued for your arrest.
The other option is “posting bail” through a bail bond agent. There are numerous bail bond companies that work with the families and friends of those who have been arrested. They are there to assist in helping to secure your release from custody upon the “posting” of this bond. However, if bail is required to obtain your release, and you are unable to post the required bond amount, then you will remain in custody through the duration of your criminal case as it works its way through the system accordingly.
One of the many things we can assist you with at Orange County Criminal Attorney Law Firm, is to have a Bail Review hearing. If the bail amount set on your case seems excessive or beyond the schedule, we can assist in having this issue heard before the Court. Retaining our office, we can file the necessary motions to address your bail amount. We can put forth legal reasoning and the circumstances for each individual case we handle to assist in obtaining the lowest possible bail amount necessary to secure your release.
Now, once you are arrested, booked, and let’s hopefully say released, then what? Well, in most misdemeanor cases such as DUIs and Drug possessions, the arresting agency will need to put their case and information together before forwarding over to the prosecuting agency. The arresting agency will complete its investigation of its case by putting together the multitude of necessary reports, witness and victim statements, lab results, videos and analysis of the case. Once they have compiled their case together, it is forwarded onto the prosecuting agency for review and determination if charges are to be filed. At that time, the arresting agency will include within their report their recommendations of what criminal charges should be brought forth against you. We cannot stress enough about the importance of professional representation at this early stage. It is a critical time where we can get involved in the reviewing of the case, ensuring any possible additional information is provided that can help achieve favorable results for you in your matter. Truly it is an opportunity for us to be in the thick of the process, alleviate some of your stress and worry, and guide you through the continuing phases ahead.
Upon receipt of the file from the arresting agency, the matter now becomes the responsibility of the prosecuting agency to determine how the case will proceed. Depending upon the county and the city in which the crime has occurred, and the charges leveled against you, the prosecuting agency will either be the District Attorney for the County, or the City Attorney’s office. Depending upon the county in which you are in, the City Attorney handles most misdemeanor and infraction cases, whereas the District Attorney’s office handles the felony matters.
Once the case is turned over to the appropriate prosecuting agency, they will then begin their own review and investigation into the matter to determine how best they should proceed moving forward. In most instances the charges should be filed promptly against you. However, with the back log of cases seen nowadays, it is quite likely and expected that it will take a bit longer. The prosecuting agency in many instances will review the file provided by the arresting agency, but then do their own investigation as determined. This can include their investigators talking to the various witnesses and/or victim(s), conducting crime scene research, reviewing lab results and so on. This can be a very arduous and time-consuming process, especially with the number of cases that are turned over to them every day.
This is another stage of the pre-filing process that having representation such as that of the Orange County Criminal Attorney Law Firm is so critical. We can immediately begin contacting the appropriate agencies to determine the status of your matter. We work to ensure you have the most current and updated information on your case. We help to address any questions the prosecuting agency may have to possible minimize the consequences you may face. In addition, we stay informed of the status of your matter to ensure no upcoming set court date is missed or you remain unware of any court proceedings.
In a misdemeanor case, which refers to a case where you can face a maximum of 365 days in jail and/or a serious fine (i.e. many DUI charges, possession charges, etc.), the prosecuting agency has a statute of limitation of one year from the date of the arrest to where they must file the various charges against you. That means even if the citation you received from the arresting agency has a court date listed on it, that date may come and go before charges have been filed. You still must be prepared for that Court date to occur, but realize it could also come and go and it can be several months before your first appearance in Court occurs.
There are many reasons why the prosecuting agency may not have yet filed charges against you by that original set court date. They could still be gathering information, they may have referred the case back to the arresting agency for further information, or they could just be determining if they feel they have enough evidence to move forward with officially filing charges against you. Something to be aware of is that should your Court date come and go without charges yet being filed, once the prosecuting agency decides to file charges, they are required to send you written notice. This notice will include the date of the violation, the charges they have determined to be filed against you, the Court date set for your Arraignment, and the courthouse location of where your case will be heard.
However, for felony matters, which is a much more serious crime for which a more serve punishment is faced, the timeline is even more extensive and differs depending upon the crime. Generally speaking, in most felony charges, the prosecuting agency has up to 3 years from the violation date before having to bring charges against you. But as noted, there are many exceptions to this rule, and by speaking to an attorney on your specific case and information a more definitive timeframe can be laid out for you.
Now here is an important item to note that a clear majority of people do not realize. The charges for which you were originally arrested for may not be the only charges that the prosecuting agency elects to proceed against you criminally in court for. That’s right, there could be additional criminal count violations of crimes (each individual charge is referred to as a count in the filing of charges) filed against you. During the investigation it may be determined by the prosecuting agency that other criminal acts took place or laws violated, thus they can decide to add additional charges from the original charges you were arrested for.
What is extremely important, and I cannot stress enough is that you realize your rights in any potential criminal situation you are facing. It is of utmost importance that you seek proper guidance from a qualified, licensed criminal defense attorney as early in the process as possible. Representation during the pre-filing process can alleviate much of the unneeded stress, anxiety and concern that you have. Your criminal defense attorney can help navigate the various agencies involved, guide you during the process from arrest through the entire criminal case, and provide a comfort to you as you face any criminal action that may be ahead.
Sara is the editor of San Diego Uptown News.