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Know and Protect Your Rights in a Criminal Defense Matter



Download Our Free Guide

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.

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’s 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 let your attorney 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.

What Do Plea Offers Generally Look Like For First Time Offenders?

If its a first time DUI, typically a plea offer in Alameda County would be two days of cleaning up on the side of the road less credit for the time that you already served on the day that you were originally arrested, restitution for any damage that may have been caused if there was a collision, a 3-month DUI school, if it’s not a high blood alcohol content, fines upward of $2000, as well as the requirement that an ignition interlock be placed in the vehicle installed at the expense of the client. In addition to that, there are typical alcohol terms where the client is not allowed to drive with any measurable amount of alcohol in their system, they are not allowed to drive unless properly licensed and insured, and not allowed to refuse a chemical test by a peace officer, including a preliminary alcohol screening test. This is important, because typically if you are not on probation, you are allowed to refuse the preliminary alcohol screening test. The Breathalyzer that they try to give you in the field, on the side of the road, can be refused unless you are on probation. Additionally, a first DUI offense typically comes with about 3 years of probation.

For other misdemeanor offenses, a typical resolution for a first offense would include a deferred entry of judgment, where the client will enter a plea, but judgment on that plea is put over for a period of time, typically about 12 months but it could be less or more depending on the circumstances. They may be required to do some sort of community service, or attend a class, such as anger management, parenting, or AA. After they’ve completed that and successfully stayed out of trouble, if there are no new citations or arrests for that time period, say a year, then the matter gets put back on the calendar, and we go to court and it gets dismissed. (It is important to note that if you fail your DEOJ term you will automatically be convicted of the underlying offense that was deferred so you will want to make sure you’re able to stay out of trouble and complete the conditions of your DEOJ to successfully secure your dismissal).

In addition to DEOJ, there are pre-plea deferred prosecution options, civil compromises, and PES programs that allow the client to earn a dismissal in a shorter period of time without risking an automatic conviction if there is some failure to complete the terms of the agreement. Rather than entering a plea that gets deferred, there is no plea entered and the matter is continued for about 60 to 90 days. During that time the client has an opportunity to meet certain conditions, like a attend Narcotics Anonymous class or AA or complete community service. As long as they complete their classes when they come back to the court, the matter gets dismissed. If they fail or they mess up, they just start back right at square one. They will not be automatically convicted like in a deferred entry of judgment. These are the more appealing options.

There are countless ways that a criminal case can be resolved for first time offenders and the outcome will depend on several factors including the client’s goals, the evidence, and the analysis of the issues.

How Do You Determine Whether To Take A Case To Trial Or To Negotiate A Plea Deal?

Many times, whether or not we take a case to trial hinges on the client. Can the client be patient with the amount of time and preparation that it takes to get to trial? Is the client’s expectations managed about the number of court appearances that are involved? Is the client prepared for the expense that is involved, not just with the trial but potentially hiring experts and hiring an investigator? Is the client determined to defend their innocence? Managing the client’s expectations is crucial – for many of our clients it is the first time they’ve ever been involved in the court process and they just need someone who will take the time to explain “what happens next” and to educate them on the pros and cons. If a client is willing and ready to go forward with the trial then we are eager, resilient, and tenacious about defending them in front of a jury.

As far as taking a plea offer is concerned, even if the client wants to get this over with as quickly as possible, we would still conduct an analysis of the case and provide the client with options and potential outcomes if they were to continue fighting. We would advise them of their rights to go through a jury trial, ensure that the decision to plea is something that the clients truly wants to do after being fully informed and educated, and then strategize with them about steps for the future to prevent repeat convictions and clean their record if applicable.

If taking a deal is what the client chooses, then of course, we will aim to secure the best in line with the client’s goals. Whether that be keeping them out of custody, reducing the exposure, reducing the probation term, securing a dismissal at a future date, avoiding a crime of moral turpitude, and so on.

How Important Is It To Hire A Criminal Defense Attorney As Early As Possible?

The importance of hiring a criminal defense attorney as early as possible is evident from the practical and emotional side. Practically speaking, hiring an attorney early in the case means being able to access the documentation and discovery with ease, being able to have your questions answered, having a skilled advocate with experience negotiating your matter with the District Attorney, and having someone there who can advise you on the appropriate pace for litigating the case. For example, if you were charged with a felony case and you were out of custody, there would be little reason to speed the case along if it is going to result in the client going in to custody – keeping the client out of custody is a common goal and sometimes aging the case may be appropriate. Having an attorney who can help you determine how fast or slow a case should go is valuable.

The emotional or mental perspective mentioned above is also a significant reason to hire an attorney early in the process. When you have an attorney like those on The Nieves Law Firm team you will partner with people who care about you, your goals and the outcome of your case. We take the time to answer your questions, empower you with information, and work towards a holistic result that not only takes care of your case but sets you up with an action plan for the future. The peace of mind you receive from hiring an attorney early on is invaluable.

How Does The Bail Process Work? Are All Criminal Charges Bondable Offenses?

Bail and bond are interchangeable terms. Bail is set at your arraignment. There is a guideline schedule bail chart in your county, which will indicate to the judge what bail should be set at. What that means is how much money should be hanging over your head, to ensure that you are going to show up in court when you are ordered to appear. The court wants to ensure that you are not going to pose a flight risk or run away, and that you are not going to be a danger to society while you are out. The bail is what is going to hold you accountable for that. A bail will be set and you can either post bail in full or hire a bail bondsman. Let’s say your bail is set at $25,000, you can pay $25,000 to get out of custody and stay out of custody, so long as you comply with the conditions of your bail. Alternatively, you can get a bail bondsman to bond you out, meaning that they will post on your behalf. You will pay them a percentage fee, usually about 10% and then the bail bondsman will post the entire amount with the courts to get you out. The percentage you have to put down depends on the individual bail company’s payment plans, whether you qualify for any discounts like a military discount, or if you hire an attorney and receive a reduced rate.

What Are Some Common Mistakes People Make That Can Harm Their Criminal Case?

One of the most common mistakes we see people make is saying too much to the police. You have the right against self-incrimination. You are not going to talk yourself out of an arrest, nor are you going to talk yourself out of the investigation. It’s really important to remain silent, as you have the right to do so.

Another common mistake that we see is that people are not informed about what they have the right to refuse during a DUI investigation. For instance, you have the right to refuse to do the preliminary alcohol-screening test (the roadside breath test) if you are not on probation for a prior DUI. You also have the right to refuse the field sobriety tests.

Finally, another mistake we see is the response our clients have with the investigating officers. A lot of times, people will get angry or belligerent with the police officers and start arguing or resisting during the process. Yes, you are entitled to an opinion and yes, you have the freedom of speech but let your attorney advocate for you when you hire one. Depending on your actions, your uncooperative behavior could be construed by a police officer as resisting – which is loosely defined as obstructing or delaying a police officer while he is trying to carry out his lawful duties. For example, if an officer asks for your ID and you do not provide it then this can quickly and unnecessarily escalate an encounter.

Will I Have To Be Arraigned Or See A Judge Before I Am Released From Jail?

You will have to be arraigned, or see a judge before you are released from jail. Typically, you’d be brought into court within 48 hours, and the District Attorney would have to file charges against you. You would be transported to the jail, and you would appear in front of the judge from behind a glass window or barred area. Your attorney would speak with you beforehand, either in the client interview room in the back or through a jail visit – depending on how early you retained their services. Your attorney would appear in court with you, and make an argument to the judge regarding your custody status, whether you should be released on your own recognizance, or if bail should be reduced, and for what reason. Then typically you would enter a plea of “not guilty” so you and your attorney have an opportunity to investigate the case further, inform the court whether you want to waive your right to a speedy trial, and pick a future date to return to court.

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