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Let Us Protect Your Rights...
Here is what to do if your are contacted by law enforcement:
In public: "I would like
to go about my business. If I am free to leave, I request to do so."
If you are told that you have
the right to an attorney before questioning: "I do not wish to appear
uncooperative but I refuse to answer any questions without my attorney present.
My law firm is the Law Offices of Triessl and Morris at 818.990.5551."
If you are asked for consent
to search: "I do not consent to any searches of my person, property
or vehicle."
If you are asked for entrance
into your home: "You do not have permission to come into my home."
If you are over 21 and are stopped
on suspicion of driving under the influence of alcohol and/or drugs:
"I will not take any field sobriety tests and I will not take the PAS test
(the preliminary alcohol screening test)."
If you are under 21 and are
stopped on suspicion of driving under the influence of alcohol and/or drugs:
"I will not take any field sobriety tests." You are not permitted
to refuse the PAS test.
If you arrested for DUI:
The officer must give you the option to take either a breath or blood test.
A urine test may be among the test choices if the officer suspects that
you are under the influence of a controlled substance. You must submit
to one of these tests: you do not have the right to an attorney when making
this choice or at any time before or during the test.
Let Triessl and Morris Protect Your
Rights!
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Law Offices of Triessl & Morris - The Anatomy of a Criminal Case1
ARREST.
The person suspected of committing a criminal act is arrested.
If the target person is not immediately arrested, that doesn’t
mean that he or she won’t be. It means that the police are
continuing to investigate the incident
and are trying to obtain sufficient evidence to arrest the
target person.
RELEASE.
After arrest, the police can release a person O.R.,
on their own recognizance, in which case bail does
not have to be posted, or they can release him
or her after the bail amount set is posted.
BAIL AMOUNT.
There is a bail schedule setting bail amounts
for each offense. For example, a felony domestic violence
bail is $50,000. A misdemeanor DUI bail amount is $5,000.
When setting bail, the judge must assume that all of the
allegations against the person in custody are true. However,
bail amounts must be constitutionally reasonable.
ARGUING FOR AN O.R. RELEASE.
In urging the court to release our client O.R., we argue
that our clients have strong ties to the community, that
they have hired us to assist them through the process, that
they are not a flight risk and will appear at each and every
court appearance set. If the judge does release our client
O.R., the judge can attach terms and conditions of that
release.
THE POLICE WRITE A REPORT.
After a triggering event, the police agency writes a report
regarding the incident.
ATTEMPT TO PREVENT.
In the event that the target person is not immediately arrested,
we can be hired at this point while the investigation is
ongoing to try to attempt to prevent a criminal filing against
him or her in criminal court. We do this by trying to obtain
sworn declarations of people having knowledge of things
which tend to exonerate our client or mitigate the situation
in some way and by submitting any and all other evidence
of mitigation, for example, attendance at meetings and programs
and efforts taken after the event to right things and character
reference letters.
THE POLICE SUBMIT THEIR REPORTS TO THE PROSECUTOR.
After the investigation into the situation is complete to
their satisfaction, the police agency submits their findings
to the prosecutor who is in charge of deciding whether
or not to file the case against our client in criminal court.
The prosecutor reviews all materials relevant to the event
and makes a decision as to whether or not they feel that
they can prove a criminal count or counts against our client.
The prosecutor must keep in mind here the standard that
applies to all criminal cases: CAN THEY PROVE OUR
CLIENT GUILTY BEYOND A REASONABLE DOUBT? They also
need to remember that a unanimous jury is required
to convict our client: twelve members of the community selected
by process of elimination through peremptory challenges
by both the prosecutor and the defense must all find guilt
beyond a reasonable doubt. EVEN ONE JUROR WHO DOES
NOT FIND THAT THE REASONABLE DOUBT STANDARD HAS BEEN MET
MEANS THAT OUR CLIENT IS NOT GUILTY and a hung
jury is declared.
INFORMAL PROSECUTOR OFFICE HEARING.
There are cases where we are able to convince the prosecutor
to hold an informal hearing in their offices instead
of filing a criminal case against our client in
criminal court. Typically in these hearings the complaining
witness, our client and we are present with the prosecutor.
After an informal discussion of the event, our client
is most often released with no penalty.
ARRAIGNMENT.
This is the first court appearance in all criminal cases.
The discovery, or the documents in the prosecutor’s possession
that relate to the case is turned over to us at this proceeding.
A "NOT GUILTY" plea is entered at arraignment except in
extremely rare situations.
2
MISDEMEANORS.
Misdemeanors are "low grade" offenses, petty theft, DUI,
driving on a suspended license and possession of less than
an ounce of marijuana are examples. You can do county
jail time for all misdemeanor offenses, ranging
from ninety days to one year in the county jail. WE CAN
APPEAR FOR YOU IN MISDEMEANORS pursuant to Penal Code section
977(a): YOU NEED NOT APPEAR IN COURT.3
However, we will let you know if we think that your appearance
will be helpful in some way.
PRETRIAL CONFERENCE.
The pretrial conference is set about a month after arraignment.
At a pretrial conference, we conference, or discuss, the
case with the prosecutor. We speak to the prosecutor about
the weaknesses in the prosecutor’s case to amplify the reasonable
doubt standard that applies to all of our clients. We speak
to them about factors in mitigation, for example, a history
of drug use, alcohol abuse, mental health issues, tough
family situations, marital discord. We talk to the prosecutor
about things that our client may have done after the triggering
event to rehabilitate him or herself, like attendance at
a drug and alcohol rehabilitation center, AA, NA, CA and
MA meetings, payment for any damages caused and the like.
We give the prosecutor character reference letters written
by family, friends, employers, employees and others with
personal knowledge of our client and his or her life situation
and character traits. There may be several pretrial conferences
set throughout a misdemeanor case.
DISCOVERY.
After a review of the initial documentation that the prosecutor
provides to us at your arraignment, we may find that there
are holes in their case that we need more information on.
It is the prosecutor’s duty to provide any and all
information that can help our client. To this end,
we write the prosecutor a letter under Penal Code section
1054. This is an informal letter requesting additional items
of information that we require to defend you throughout
the case. For example, if the police report says, "ambulance
number 53 responded to the scene (ambulance incident report
number 2008-99-66432)," our request to this would be that
the prosecutor provide us "any and all reports, notations
and recordings in any form, with regard to ambulance number
53's incident report number 2008-99-66432."
There are also times when we seek information without the
prosecutor’s assistance directly through the agency that
we believe holds the documentation that we seek: for example,
subpoenas to a casino for video surveillance tapes or to
a hospital for medical records.
THE PROSECUTOR’S OFFER.
The offer is an offer to settle the case short of going
to trial. The offer is to plead guilty or no contest to
a particular charge with particularized and statutory terms
and conditions of probation.
OUR COUNTER OFFER.
Perhaps right after the prosecutor’s offer or, more likely,
on a future pretrial conference court date, we make a counter
offer if appropriate. For example, in a DUI case where the
breath test results are .09, .10, and the prosecutor’s offer
is to plead no contest to a standard DUI, we may make a
counter offer for a no contest plea to a reduction to a
DUI charge, a "wet reckless" for example, or even a dry
reckless or two traffic tickets. If the prosecutor wants
a plea to a petty theft, we may propose a counter offer
for a disturbing the peace or a trespass charge.
HIGHER UPS.
If the prosecutor in court is unreasonably inflexible and
we feel it appropriate, we will schedule an in person or
a telephone meeting with a higher up prosecutor to get a
second opinion and to try to get the higher up to authorize
a plea agreement consistent with our counter offer.
YOUR DECISION.
At the "end of the road," when we have gone absolutely as
far as we can to achieve the best possible proposed resolution,
the discovery process is complete and the prosecutor has
extended its best offer, you have a decision to make.
WILL YOU RESOLVE THE CASE SHORT OF TRIAL THROUGH
A PLEA BARGAIN OR WILL YOU GO TO TRIAL?
We will guide you throughout this process and be
very straight and honest with you in terms of the likelihood
of success at trial and our opinion as to the best course
of action based upon all of the facts and circumstances
at hand.
FELONIES.
Felonies are "high grade" offenses. Examples are robbery,
burglary, murder, rape and weapons charges. YOU MUST APPEAR
IN COURT WITH US IF YOU ARE CHARGED WITH A FELONY.4
You can do state prison time for all felonies.
Statutorily, or by law, each felony holds three possible
state prison terms, low, mid and high term. For example,
in a voluntary manslaughter case, the possible state prison
terms are 3, 6 and 11 years. In a first degree burglary
case, the possible state prison terms are 2, 4 and 6 years.
ENHANCEMENTS:
These are further allegations by the prosecutor that serve
to increase the period of custody time above and beyond
the statutory low, mid and high terms. Examples of enhancements
are membership and acting in furtherance of a criminal street
gang, having a prior prison term and causing great bodily
injury.
The first appearance after arraignment in a felony case
is called different things:
EARLY DISPOSITION CONFERENCE/ PRE-PRELIMINARY HEARING.
This appearance is similar to the misdemeanor pretrial conference.
We speak to the prosecutor about the weaknesses in the prosecutor’s
case, to amplify the reasonable doubt standard that applies
to all of our clients. We speak to them about factors in
mitigation, for example, a history of drug use, alcohol
abuse, mental health issues, tough family situations, marital
discord. We talk to the prosecutor about things that our
client may have done after the triggering event, like attendance
at a drug and alcohol rehabilitation center, AA, NA, CA
and MA meetings, payment for any damages caused and the
like. We give the prosecutor character reference letters
written by family, friends, employers, employees and others
with personal knowledge of our client. There may be several
early disposition conferences or pre-preliminary hearing
appearances set throughout the case.
THE PROBATION REPORT.
In felony cases, our client, usually accompanied by us,
attends a probationary interview with a state probation
officer. This interview includes the probation officer taking
an in-depth factual inquiry which goes to the question of
whether or not our client is suitable for probationary
supervision. This is clearly the goal in felony
cases. Most often, our client does not discuss the facts
of the case with the probation officer. When we go to court
after our probation interview and pick up the actual written
probation report, we want to see that the probation officer
whom we met with RECOMMENDS PROBATION and not state prison.
THE PROSECUTOR’S OFFER.
The prosecutor makes an offer to settle the case. This is
typically the best offer that is extended by the prosecutor
in a felony case before preliminary hearing (discussed below).
OUR COUNTER OFFER.
Many times in felony cases, our counter offer will include
a request to reduce the charge from a felony to a misdemeanor.
If the prosecutor is set on a prison offer, we may make
a counter offer for a ninety day diagnostic study so that
we can have another opportunity at a probation recommendation.
HIGHER UPS.
Again, if we feel it necessary and appropriate, we meet
with a higher up prosecutor to see if we can get a better
offer extended.
PRELIMINARY HEARING.
In situations where circumstances prevent resolving the
matter early, we proceed to preliminary hearing. Preliminary
hearing is a long proceeding wherein the
prosecutor calls witnesses to testify in court about the
event. AT THIS PROCEEDING, THE ACTUAL COMPLAINING
WITNESSES DO NOT NEED TO APPEAR TO TESTIFY. Under
Proposition 115, the prosecutor only needs to call the police
officers who investigated the event to testify. However,
at the actual trial, the complaining witnesses themselves
need to come into court and testify.
THE JUDGE’S DECISION.
At the end of the preliminary hearing, the judge makes a
determination as to whether or not there is enough
evidence to hold our client to answer to any or all of the
charges against him or her. The standard of proof
at a preliminary hearing is not beyond a reasonable doubt.
The prosecutor must show instead that there is a
STRONG SUSPICION that our client is the person
who committed a crime or crimes. We fight at every twist
and turn during preliminary hearing. If the judge does not
believe that the strong suspicion standard is met, the matter
will be DISMISSED. If the case is dismissed, the prosecutor
has the option to re-file the case against you or to drop
the case entirely.
MOTION TO REDUCE.
During argument after preliminary hearing, if appropriate,
we can make a motion under Penal Code section 17(b) to reduce
the charge or charges from felonies to misdemeanors.
ARRAIGNMENT.
If the judge finds that a strong suspicion does exist and
our client is held to answer after preliminary hearing,
he or she will set the matter for another arraignment. Again,
we typically plead "NOT GUILTY" at this appearance.
PRETRIAL CONFERENCE.
Then the matter proceeds to pretrial conference. The same
applies here that has been discussed above and again, there
may be several pretrial conferences before trial.
YOUR DECISION.
At the "end of the road," when we have gone absolutely as
far as we can in your defense, the discovery process is
complete and the prosecutor has extended its best offer,
you have a decision to make. WILL YOU RESOLVE THE
CASE SHORT OF TRIAL THROUGH A PLEA BARGAIN OR WILL YOU GO
TO TRIAL? We will guide you throughout this process
and be very straight and honest with you in terms of the
likelihood of success at trial and our opinion as to the
best course of action based upon all of the facts and circumstances
at hand.
TRIAL.
There are two types of trial, a court trial
and a jury trial. YOU HAVE THE
CONSTITUTIONAL RIGHT TO GO TO TRIAL. This is true
in both misdemeanor and felony cases. A court trial is a
trial where the only decision maker is the judge: the judge
listens to all of the evidence and decides if there is proof
to show your guilt beyond a reasonable doubt. A jury trial
is where twelve members of the community are selected to
listen to all of the evidence and to decide guilt or innocence.
NOT GUILTY.
This is obviously what we want to hear the clerk of the
court pronounce when reading the verdict forms at the end
of trial. The case is then DISMISSED and our client
is DISCHARGED.
GUILTY/SENTENCING.
After this pronouncement, either our client is sentenced
immediately or a date is set in the future for sentencing.
If there is no legal cause why judgment should not be pronounced,
the judge imposes sentence, either probation with terms
and conditions or state prison.
APPEAL.
This is a plea to a higher court, the Court of Appeal, to
overturn the conviction and/or sentence of the lower court,
the trial court. An appeal is a lengthy, labor-intensive
process and we can be hired separately for the handling
of an appeal.
NOTES.
1 We cannot and will not guarantee
any particular result in a criminal case. The following
outline is for informational purposes so that you understand
the generalities of the structures and proceedings that
we see every day in our practice of criminal defense law.
[back]
2 An example of such a rare
case: our client is only charged with a first offense DUI
when we know that he or she actually has three prior DUIs
within the relevant ten year time period. [back]
3 There are certain exceptions
to this: for example, for an arraignment on a domestic violence
case, our client must appear with us. And there are times
when the judge orders that you are present for some hearings.
[back]
4 There is a document called
a WAIVER OF PERSONAL APPEARANCE under Penal Code section
977B which is applicable in felony cases and we can in certain
circumstances ask the judge to allow us to appear in court
for you. This waiver has limitations, though, and even if
the judge allows the waiver, you must appear for your arraignment
and all other significant court appearances like the preliminary
hearing, the taking of a plea and other proceedings during
which someone testifies under oath. [back]
LET US PROTECT YOUR RIGHTS!
818.990.5551.
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