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    Know and Protect Your Rights in a Criminal Defense Matter

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      Know and Protect Your Rights in a Criminal Defense Matter

          What Is Your Background In Practicing Criminal Defense Law?

          I’ve had my own practice for the last 4 years doing criminal defense. I chose this area of law because I started working in the Sacramento County District Attorney’s office several years ago after law school and interned with a State Attorney’s office in Florida during law school. While I was working with these agencies, I had the opportunity to see how the other side operates and learned that I was passionate about criminal law as a whole. After working at the District Attorney’s office I went on to practice civil litigation at a law firm in Los Angeles. After spending two and a half years at that firm, I realized that I missed practicing criminal law and I wanted to run my own practice so I opened The Nieves Law Firm and have been running my own firm ever since.

          What Is Going To Happen In The First 72 Hours After I’ve Been Arrested On A Criminal Charge?

          If you’ve been arrested, you will be taken down to the jail. You are probably going to sit in a holding cell for some time. You will be booked and fingerprinted, and you’ll be put into the system. Then you’ll have the opportunity to contact a bail bondsman once your bail has been set, or if you don’t get bailed out then you’ll be brought to court for your first appearance. At that first appearance, you’ll find out what the charges are that have been filed against you, whether or not the bail amount is increasing or decreasing, or if you are going to be released on your own recognizance. Another thing to consider sometimes is that if you are brought to court, and charges have not been filed against you within that timeframe, you’ll be released from custody. This is because, as an Oakland criminal lawyer can explain, there is a specific time frame that the District Attorney has to bring charges against you if you are in custody.

          If you are arrested during the week, the DA has 48 hours (and up to the next continuing morning if you are arrested after hours) to file charges. If you are arrested on the weekend, they have 72 hours, not including Sunday, to charge you with the crime. If they don’t do it within the time limits, then you will be released from custody. This doesn’t mean that charges won’t ever get filed – this just means that they weren’t prepared to file them right at that moment and they have until the statute of limitations expires to send you notice in the mail or issue an arrest warrant at a later time if they do decide to proceed. The statute of limitations for most misdemeanors is 1 year and 3 years for most lower-level felonies. There is no statute of limitations on murder. A dedicated attorney could further explain what to expect under these circumstances. Call today to learn more.

          Should I Hire An Attorney Prior To Being Arrested If I Suspect That I May Be Arrested?

          We offer a service called pre-charging representation so that you can have representation if you suspect that you will be arrested. Sometimes people know that they are going to be accused of a crime, perhaps they are being investigated, and it is really important to get an attorney on your side right away. This way, we can monitor the case for you and determine whether or not charges have actually been filed against you or if it’s just a pending investigation. An attorney should be the one tracking the status of the case for you because you can put yourself in a precarious situation if you personally call the police department or the DAs office to see whether or not you’ve been charged with a crime. Your attorney will be able to update you on the status of the investigation and also make public records request for you to gain access to police reports. This will give you and your attorney the opportunity to see what it is that you are being investigated for.

          Additionally, part of the service our office provides in pre-charging representation is that we serve as a buffer between investigators, detectives, law enforcement and yourself. If someone came knocking at your door trying to get a statement from you, you are actually able to say that you have an attorney and direct them to talk to my attorney instead of answering any questions. It doesn’t matter whether or not they perceive that as you being guilty or having something to hide, what matters is that you are preserving your right to be free from self-incrimination and not making any statements that could be used against you at a later time. It is really important to be overly cautious because there is no way that you are going to talk yourself out of an investigation. The best thing to do is to keep quiet and to hire an attorney to handle everything for you.

          What Are The Common Types Of Criminal Cases That You Handle?

          I typically handle domestic violence cases, DUIs, drug cases, assault cases, restraining order matters—which are not necessarily criminal defense cases, but they can have a quasi-criminal effect to it because there can be law enforcement consequences for violating them—contempt actions for the same reason, because a quasi-criminal charge could result in incarceration, fraud and theft. We also take on serious felony cases such as sexual assaults, robberies, gun charges, and cases involving gross bodily injury enhancements or strike offenses. The attorneys in our office have experience handling matters from low-level misdemeanors to homicides.

          Is It Ever Possible To Have Violent Crime Charges Reduced?

          It is possible to have violent crime charges reduced, and there are many of different ways to do this. You can do it through negotiation. Every felony has kind of a mini-trial half way through, called a Preliminary Hearing. This is similar to a bench trial where there is no jury – just a judge determining if there is probable cause. The evidence is taken and the judge decides if there is sufficient evidence to believe that a felony has been committed. If the charges are wobblers, or if there is a lesser included that could function as a wobbler, then you can make a motion at preliminary hearing for the charge to be reduced to a misdemeanor. That’s one way and we’ve achieved this goal many times throughout our careers as Oakland criminal defense attorneys.

          California’s laws on serious violent felonies are a bit complicated, because there is a preclusion against plea-bargaining in some of them. What you have to do is you have to persuade the prosecutor to dismiss and re-file different charges. The theory is that prosecutors cannot overcharge for purposes of getting the defendant to plead to a lesser offense or as charged with a lower sentence – since plea bargaining is not allowed before preliminary hearing.

          This was actually put into law because people were angry that serious cases were getting plea bargained down and they sought a tougher disposition on the punishment of crimes. It did also have the effect of requiring prosecutors to be more careful with how they charge cases. They don’t charge the non-bargainable charges unless they really think it’s proven by the evidence they have. Defense attorneys and prosecutors have a professional adversarial relationship, as they should, due to the nature of our system. Undoubtedly, there are irresponsible prosecutors out there, but for the most part we like to hope that they comply with the high ethical standards they are held to.

          Are Most Violent Crimes Prosecuted As Felony Charges?

          Most violent crimes are classified as felonies. There are a couple of misdemeanors, such as simple battery, which is the unlawful use of force against another person. When it is pushing or shoving, or throwing something at someone, it could be a misdemeanor. It depends on the level of force used. From there up, there are misdemeanors and there are what are called felonies. It’s mostly what you think of violent crimes, including assault with a deadly weapon and sex crimes. California has a specific category for serious and violent charges such as robbery and carjacking.

          There are some really serious crimes like mayhem, which is disfiguring another person, or torture – which would be a felony. Then there are what are called wobblers. These are “Alternative Felonies” which means they can be charged and prosecuted either as felonies or as misdemeanors. The DA can also start it off as a felony and it can later be reduced to a misdemeanor. Some common wobblers are PC 245(a)(1) (assault with a deadly weapon), PC 273.5 (corporal injury), PC 243.4 (sexual battery), VC 2800.2 (evading police).

          What Would Be Considered A Violent Crime In California?

          Several years ago, the California Legislature, partially as a response to the under-funding of the system, reclassified a bunch of crimes. Anything less serious than a narcotics offense where weapons are not involved, including theft, are not considered violent offenses. Violent offenses are assault, battery, many related sex offenses, and murder.

          Will I Look Guilty If I Hire An Attorney Before An Arrest Is Made On Sex Crime Charges?

          If you are under investigation, the fact that you’ve hired an attorney cannot be used as evidence against you. It may raise the question in someone’s mind, “Why is this person hiring a lawyer if they didn’t do it,” but so what? You definitely have to have an attorney. There are a few tactics that law enforcement regularly use during an investigation, which unless you’ve consulted with an attorney, you are not going to know how to handle it, and those are the things that really get people in a lot of trouble. One of them is what’s called the Pretext Phone Call, where they have the alleged victim call the alleged perpetrator on the phone and get them into a conversation to the effect of, “I feel really terrible about what happened. I really want to talk to you about it. Can we get together or can you at least tell me why you did this to me? I feel so bad about it.”

          The person on the other end of the line is freaking out and doesn’t know what to do, so he responds “I’m so sorry, I didn’t mean anything by it,” or, “I thought you weren’t going to tell anybody about this,” or, “I thought we’d forgotten about this.” The goal is to get that person to say something incriminating. This is all being recorded. That has gotten people prosecuted in a lot of situations where they might not otherwise have been. The truth is that many of the things that get charged in these types of cases are not something that are really subject to a lot of objective proof. They don’t necessarily involve forensic evidence, fiber, or DNA. They unfortunately do take place behind closed doors, so there are really only two people oftentimes that would ever be able to talk about what actually took place. So they use various techniques to bolster their case and one of them is the pretext phone call where they get the person to admit things over the phone.

          The other one is they bring the suspect in to talk to them and they tell them, “We really don’t know whether this is true or not but we can give you a polygraph if you want. If you take the polygraph and it shows that you’re lying, then we’re going to know you did it and that’s not going to go so well for you. Whereas if you tell us now, I think we can make it go better for you,” or, “If you pass the polygraph, you get to walk out of here. But if you don’t pass it, then we are going to think you did this.” Well, that’s pretty scary, but the fact is that polygraphs are inadmissible in court. People don’t know that. They also don’t know that they have the right to say no to this, and even if they do say no to it, if this case ever ends up in court, it’s not like they are going to be able to walk in and say, “We offered him a polygraph and he refused, what does that tell you?” Because it wouldn’t necessarily have proven anything anyway, the courts have said, “You can’t even mention it.” People also don’t know that.

          We had a pretty serious rape case about three years ago where law enforcement brought our guy in and gave him the polygraph story and also told him that, “If you just tell us now, we are not going to think you are a criminal, we are not going to think you are a bad guy.” He told them a story and they said okay. The question was, was this confession that he made worth anything when he was told that if he just agreed with them they wouldn’t consider him a criminal? Who wouldn’t do that, right? Truthfully, it would have been better if he hadn’t gone in there at all, and an attorney would have told them that if he had one during the investigation phase. I am confident that he did not do it – there was no forensic evidence, there was no fiber, no hair, no blood, no semen, no DNA, no nothing to match it up but we had a false confession to deal with. Notwithstanding, after being hired, we were able to bring this out at trial, and we won.

          The trick law enforcement used was to threaten the polygraph and then say we won’t think you’re a criminal – in an effort to get cooperation. You would never know what to do about this technique if you don’t have a lawyer. People that are facing serious offenses, whether they did it or not, get scared – it’s normal. What tends to happen is they tend to do things that may make them look like they are guilty even if they aren’t. They can avoid these missteps by hiring a skilled and experienced criminal defense attorney like the ones at The Nieves Law Firm.

          What Is The Difference Between State Level And Federal Level Sex Crime Charges?

          Commonly known sex crimes, such as rape, assault, and molestation, are not typically charged as federal offenses. The federal code has them in there, but that’s just not how that gets dealt with. The most common federal sex crime is child pornography, which is a big problem. Using any means to circulate child pornography is a very serious federal offense. There are also offenses involving sex trafficking – where people are moved around for various sex offenses and making pornography. When it involves multiple states and large rings of people doing this, that is where the Feds come in almost everything else is handled at the state level. It is also at this time, when feds are involved, that you need help from a qualified and experienced California sex crimes lawyer. A Sex crimes attorney in Oakland, CA understands all the local laws and will do his best to build a strong defense case.

          How Is A Sex Crime Determined To Be Either A Misdemeanor Or A Felony?

          Almost all sex crimes are felonies. There are a couple of lower level crimes, such as Sexual Battery, which is a misdemeanor. Sexual Battery is touching certain areas of the body of another person without their permission. But the battery stops at the touching and does not go further. Not to imply that “just touching” is nothing but rather that there is nothing more than touching that occurred. Child molestation (i.e. harassing a minor with some abnormal sexual interest) can also be charged as a misdemeanor. Statutory Rape is a wobbler – it can be charged as a misdemeanor or a felony – there are certain levels to it which have to do with the age difference between the older person and the younger person. Some of the most serious sex offenses are those that involve minors under the age of 14 – these are almost always charged as felonies and the majority of them cannot be expunged at a later date.

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