LAW OFFICES ATTORNEY AT LAW REPRESENTATION DUI | DWI

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]

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Law Offices of Triessl & Morris - The Anatomy of a Criminal Case1

Law Offices of Triessl & Morris - The Anatomy of a Criminal Case¹