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You have the right to retain counsel at any stage in a criminal proceeding. If you cannot afford representation by private counsel, you are entitled to representation by the public defender's office. But if you later are found to possess significant assets and it is determined that you had enough money to pay for a lawyer, you will be charged for the public defender's work.
Criminal Investigations Pre-arrest
If you are contacted by police or other law enforcement investigators but no charges have been filed and no arrest has been made, you are most likely under investigation. This is the optimal time to interview and hire counsel if you can afford it. With the right assembly of facts, a highly qualified criminal defense lawyer may be able to:
- Prevent the charges from even being filed
- Divert the matter to an informal resolution without a trial
- Arrange to have the charges reduced
- Communicate with authorities to arrange for a surrender to avoid arrest
Arrest and booking
In the case of a misdemeanor, such as a DUI for the first time in ten years, you must be directly observed in the alleged wrongdoing by a police officer. If it is a felony, the police must have "good reason" (probable cause) to make the arrest. This does not necessarily mean the police officer must witness you commit the offense, as is the case with a misdemeanor.
POLICE DO NOT HAVE TO READ THE MIRANDA WARNINGS TO EVERYONE UNDER ALL CIRCUMSTANCES
Failure to "Mirandize" does not make the arrest illegal, but it may establish grounds to suppress key statements or confessions.
Booking involves the following:
- You are taken to or you go to a police station
- You are asked a series of questions
- You are searched with or without consent
- You are fingerprinted and photographed
Criminal Investigations Post-arrest
This type of investigation is conducted before the District Attorney files charges but after the arrest. THE POLICE ARE NOT REQUIRED TO RELEASE THE POLICE REPORT BEFORE YOU GO TO COURT. Often, however, a criminal defense lawyer can get a copy before the hearing by contacting the deputy district attorney assigned to the case.
Decision to Charge
The District Attorney's office will decide whether or not to file charges. Although the police do not make the decision on whether or not to file, the report they make to the D.A.'s office usually does determine whether charges will be brought.
Arraignment
This is the first hearing at which the court will read you your rights and the charges and ask how you plea. Bail, if any, will be determined. It will vary between no bail (a release on your own recognizance or "ROR") to a million dollars or more. The amount depends on the seriousness of the offense. If you are released and/or fail to show up later, a warrant for your arrest will be issued.
If their client is still in jail, the first thing most criminal defense lawyers do after an arraignment is to file a motion for a bail reduction hearing.
Discovery
Discovery is the process of finding the evidence in a case, and it can be the key to success. Your lawyer should ask for discovery documents at the arraignment. Discovery includes police reports, medical records, photographs, diagrams, itemization of any physical evidence, and the probation report, if any.
Preliminary Hearing
A preliminary hearing is held so that the court can decide if there is sufficient evidence to support the charges being brought against you. If the court agrees with the prosecutor, which they usually do, then the matter will be brought to trial.Note:You get a better settlement if you agree to a plea bargain before the Preliminary Hearing, assuming you are not confident that you are going to win your case at trial.
Often you will be offered:
- Elimination of one or more counts
- Reduction to a lesser charge, even felony to misdemeanor
- Reduction in standard sentencing
- Alternative forms of sentencing, such as "drug court"
Pre-trial Conference
If the matter is not settled at the preliminary stage, there is still a chance to avoid trial:at the pre-trial conference between the court, the deputy district attorney assigned to your case, and your lawyer.
Pre-trial Motions
Occasionally your lawyer can get some charges dropped or at least lessened with one or more pre-trial motions, such as a motion to compel evidence, motion to suppress evidence, or motion to dismiss one or more charges.
These pre-trial motions can be made during, at the time of, or after, the preliminary hearing.
Trial
A jury trial in California includes the following by both the prosecutor and your defense attorney:
- Opening statement
- Examination of witnesses
- Cross-examination of witnesses
- Closing arguments
The jury determines guilt or innocence, but the court will decide the sentence.
Sentencing
You may be sentenced to probation instead of jail or prison. Probation is likely to be for a longer period of time than jail or prison, because it is more lenient.
When on probation, you must be careful. The police may make a special attempt to keep you in their radar. Any violation of probation can trigger a revocation of your parole and you can be sent to jail or prison.
Alternatives
Many defendants end up with sentences, usually negotiated by their counsel, that avoid jail time altogether. These alternative sentences include:
- Electronic home monitoring
- Rehabilitation centers
- Detox programs
- Community service
- Weekend work programs
Appeals
The appeal process will only review the application of the law to your case, not the facts of your case. The factual determination has been concluded, barring extraordinary circumstances, such as previously unavailable DNA tests, for instance.
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