Criminal Defence FAQs
Whether you are arrested or detained, you do not have to answer any questions except to give your name and address, and to show some identification if requested.
Before the law enforcement officer questions you, he or she must tell you that:
- You have the right to remain silent.
- Anything you say may be used against you.
- You have the right to have a lawyer present while you are questioned.
- If you cannot afford a lawyer, one will be appointed for you.
These are your “Miranda” rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.
You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take a test, your driver’s license may be suspended and the refusal will be used against you in court.
Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have the right to make and complete telephone calls that are free within the local dialing area.
Ask for a lawyer who is qualified in California criminal law. If you decide to hire a lawyer, make sure that you understand what you will be paying for, how much it will cost, and when you are expected to pay your bill. For more information, see the state bar pamphlet, “How Can I Find and Hire the Right Lawyer?”
The U.S. constitution guarantees anyone charged with a crime the right to legal counsel experienced in criminal law.
They can arrest you – even if they do not have an arrest warrant – if they have probable cause or good reason to believe you have committed a felony, such as an armed robbery. (A felony is a crime of a more serious nature than a misdemeanor, and is usually punishable by imprisonment for more than one year.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
If you commit an infraction, instead of taking you into custody, they may ask you to sign a citation or notice. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.
The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed the crime. If your name is unknown, “John Doe” be used on the warrant – along with your description.
Once an arrest warrant is issued, any law enforcement officer in the state can arrest you – even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door – or there is another good reason – the officer can break through a door or a window.
If the police have an arrest warrant, you should be allowed to see it. If they don’t have it with them, you should be allowed to see it as soon as practically possible.
The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.
Resisting an arrest or detention is a crime. If you resist an arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody. Depending on where you are arrested, you may have the opportunity to request a bail reduction through a bail commissioner.
When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense you are charged with, any prior failures to appear – even for traffic tickets, any previous record, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. The law presumes you are guilty of the charges for the purposes of setting the bail or release.
Instead of paying bail, you might be released on your own recognizance or “O.R.” (or “supervised O.R.”). This means that you do not have to pay bail because the judge believes that you will show up for your court appearances without bail.
The arrest record includes when and why you were arrested, whether the charges against you were dropped or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial count as convictions.
If you are convicted of committing a misdemeanor, placed on probation and stay out of trouble, you are able to have the conviction removed from your record for the purpose of employment background checks after probation is over. If you are convicted of certain felonies and you successfully complete probation, you can have the felony reduced to a misdemeanor on your record. You must contact the probation officer in either instance to clear your record.
If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case, unless the charge can be punished as a felony.
Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.
If misdemeanor charges are not dropped, a trial will be held later in a superior court. If you are charged with a felony, however, and the charges are not dropped, the next step is a preliminary hearing.
You may have a second arraignment. If the felony charges are not dropped at the preliminary hearing, you will be arraigned in superior court where your trial will later be held.
Home Searches: In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody from your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms – and even other parts of the same room – are off limits, unless the officer believes that other suspects are in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, which are in plain sight.
Car Searches: Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe that it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason – such as a broken tail light – they can take any illegal goods that are in plain sight.
If you, your home, or your car are searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.