At The Nieves Law Firm, APC, we defend people in Fremont and throughout Alameda County who are under investigation for or charged with sexual assault and related sex offenses.
Since 2012, our criminal defense practice has focused on protecting clients’ freedom, careers, immigration status, and reputations. That commitment has helped our firm earn a 5.0-star rating across more than 300 client reviews.
Founding attorney Jo-Anna Nieves is regularly sought out by national media, including ABC News and Court TV, for her criminal defense insight.
Sexual assault allegations can have serious consequences even before criminal charges are filed. An investigation, arrest, protective order, or criminal prosecution can affect a person’s employment, professional license, family relationships, and reputation.
California prosecutes sexual assault and related sex offenses under statutes including Penal Code § 243.4 (sexual battery), Penal Code § 261 (rape), and Penal Code § 288 (lewd acts involving children).
Each offense has distinct elements that prosecutors must prove beyond a reasonable doubt. Depending on the charge, those elements may involve the nature of the alleged contact, consent, force or fear, age, intoxication, or the alleged victim’s capacity to consent.
Our attorneys investigate the allegations, evaluate the evidence, and develop defense strategies tailored to the specific charges and circumstances.
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What Should You Do If You Are Accused of Sexual Assault in Fremont?
If you are accused of sexual assault in Fremont, California, you should speak with a criminal defense attorney before answering questions from law enforcement.
You may be investigated for rape under Penal Code § 261, sexual battery under § 243.4, or another California sex offense even if you have not been arrested or formally charged.
A criminal defense attorney can help protect your rights during the investigation, preserve potentially important evidence, and evaluate whether information should be presented to prosecutors before a charging decision is made.
If you are under investigation for sexual assault:
- Do not answer substantive questions from law enforcement without consulting an attorney. Statements made during an investigation may later become evidence in a criminal prosecution.
- Preserve relevant evidence. Text messages, social media communications, photographs, location records, and other digital evidence may become important to the defense.
- Avoid contacting the person making the accusation. Contact could complicate the investigation and may violate a protective order if one has been issued.
- Do not delete messages, photographs, or other potentially relevant information. Destruction of evidence can create additional legal problems.
- Speak with a criminal defense attorney promptly. Early representation may create opportunities to investigate the allegations and address prosecutorial concerns before charges are filed.
Not every sexual assault investigation results in criminal charges. However, waiting until an arrest or arraignment can limit the time available to investigate the allegations and preserve evidence.
What Our Clients Say About Us
“They took the time to clearly explain every step of the legal process.”
Conan L.
“Grace was the victorious attorney who appeared in court for me… fully prepared and completely in control of the narrative.”
Ms. Espinoza
“He truly cares about people, not just cases.”
Channing W.
“Peace of mind is priceless, and they restored mine.”
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What Sets The Nieves Law Firm Apart in Fremont?
Trial Preparation From the Beginning
Sexual assault cases frequently involve disputed accounts, credibility questions, digital evidence, medical findings, and complex legal issues.
Our attorneys prepare cases with trial in mind, evaluating whether the prosecution can establish each element of the charged offense beyond a reasonable doubt.
That preparation informs decisions about investigation, pretrial motions, plea negotiations, and whether a case should proceed to trial.
Protecting Your Career, Immigration Status, and Reputation
A sexual assault conviction can create consequences beyond incarceration.
Depending on the offense and circumstances, a conviction may result in immigration consequences, professional licensing discipline, employment restrictions, and mandatory or discretionary sex offender registration under Penal Code § 290.
We evaluate those risks when developing a defense strategy and advising clients about their legal options.
In appropriate cases, we also evaluate potential post-conviction relief and record-clearing options. However, dismissal of a conviction under Penal Code § 1203.4 does not automatically eliminate an obligation to register as a sex offender.
Clear Communication During a Difficult Process
Sexual assault allegations can leave clients uncertain about what happens next, whether they may be arrested, and how an investigation could affect their future.
We help clients understand the allegations, court procedures, potential consequences, and decisions involved in their defense.
Felony cases can move quickly. Under Penal Code § 859b, a preliminary hearing generally must occur within 10 court days after arraignment or plea, whichever occurs later, unless an applicable waiver, good-cause continuance, or other statutory provision permits a different timeline.
Early legal representation allows the defense to evaluate the evidence and prepare for these proceedings.
National Media Recognition
Founding attorney Jo-Anna Nieves has provided criminal defense analysis for national media outlets, including ABC News, Court TV, Forbes, and Nancy Grace Crime Stories.
Her experience analyzing complex criminal cases informs the firm’s approach to evaluating evidence, identifying legal issues, and explaining the criminal justice process to clients.
What Is the Difference Between Rape Under PC § 261 and Sexual Battery Under PC § 243.4?
California law distinguishes rape from sexual battery based on the nature of the sexual conduct and the circumstances surrounding the alleged offense.
Rape Under Penal Code § 261
Rape generally involves sexual intercourse under circumstances prohibited by California law, including certain situations involving force, threats, duress, intoxication, unconsciousness, or a person’s inability to provide legally valid consent.
Rape is a felony. Under Penal Code § 264, the general sentencing range is three, six, or eight years in state prison, although different sentencing provisions and enhancements may apply.
Sexual Battery Under Penal Code § 243.4
Sexual battery involves specified sexual touching or conduct under circumstances prohibited by the statute.
Depending on the subdivision charged, the prosecution may need to prove that the touching occurred against the person’s will, was committed for sexual arousal, gratification, or abuse, and involved additional circumstances such as unlawful restraint or certain forms of incapacitation.
Sexual battery may be prosecuted as a misdemeanor or felony.
Misdemeanor sexual battery under PC § 243.4(e) is generally punishable by up to six months in county jail, a fine of up to $2,000, or both.
Certain other forms of sexual battery under PC § 243.4(a) through (d) may be prosecuted as felonies punishable by two, three, or four years in state prison, or as misdemeanors punishable by up to one year in county jail, with applicable fines.
The statute also distinguishes the type of touching required for different subdivisions. For misdemeanor sexual battery under PC § 243.4(e), touching may occur through the alleged victim’s clothing. Subdivisions (a) through (d) contain a more specific statutory definition of touching.
These distinctions matter because the prosecution must prove the elements of the particular offense charged. Evidence that may establish one sexual offense does not necessarily establish another.
What Defenses Are Available Against Sexual Assault Charges in California?
The defenses available in a California sexual assault case depend on the specific charge, the evidence, and the circumstances surrounding the allegation.
Potential defenses include:
Consent
In offenses where lack of consent is an element, the defense may present evidence that the alleged sexual activity was consensual.
Communications before and after an alleged incident, witness testimony, and other admissible evidence may be relevant to evaluating consent.
However, California’s rape shield laws and other evidentiary restrictions can limit the admissibility of certain evidence concerning a complaining witness’s sexual history.
Consent is not a defense to every sex offense. Certain offenses involving minors or individuals legally incapable of consenting do not require prosecutors to prove that the alleged conduct occurred against the person’s will.
Reasonable Mistake of Fact Regarding Consent
In certain cases, an actual and reasonable belief that another person consented may provide a defense.
Whether this defense is legally available depends on the particular offense and the evidence. It does not apply automatically to every sexual assault charge.
Mistaken Identification
The defense may challenge whether the accused person was correctly identified as the individual responsible for the alleged offense.
Digital evidence, surveillance footage, witness accounts, location information, and other records may be relevant to determining identity.
Inconsistent or Unreliable Statements
Sexual assault investigations may involve multiple interviews, statements to law enforcement, text messages, and testimony given at different stages.
Material inconsistencies may affect how a witness’s account is evaluated. However, an inconsistency does not automatically establish that an allegation is false.
Defense counsel examines whether differences in statements involve important facts, whether there are reasonable explanations, and how those differences affect the prosecution’s burden of proof.
Insufficient Evidence
The prosecution must prove every required element of the charged offense beyond a reasonable doubt.
Depending on the case, the defense may challenge the reliability, completeness, or interpretation of the prosecution’s evidence.
A criminal conviction cannot be based on speculation or assumptions that fail to meet the required standard of proof.
Failure to Establish a Required Statutory Element
Different California sex offenses require proof of different elements.
Depending on the charge, the prosecution may need to establish particular facts involving sexual contact, intent, restraint, incapacity, age, or other circumstances specified by statute.
If the prosecution cannot prove a required element beyond a reasonable doubt, the defendant is entitled to an acquittal of that offense.
Constitutional Violations
Evidence obtained in violation of a defendant’s constitutional rights may be subject to suppression.
Defense counsel may evaluate whether law enforcement conducted an unlawful search or seizure, obtained statements in violation of applicable constitutional protections, or otherwise violated the defendant’s rights.
No single defense applies to every allegation. An effective defense begins with identifying the precise legal elements and conducting an independent evaluation of the evidence.
How Is Evidence Evaluated in a Sexual Assault Case?
Evidence in a sexual assault case may include testimony, electronic communications, medical records, forensic evidence, photographs, video recordings, and information collected by law enforcement.
An independent defense investigation may reveal evidence that provides additional context or challenges the prosecution’s interpretation of events.
Text Messages and Digital Communications
Text messages, direct messages, emails, and other electronic communications may be relevant to the circumstances surrounding an allegation.
These records may provide context concerning relationships, timelines, statements, or events before and after an alleged incident.
However, their admissibility and significance depend on authentication, relevance, and applicable evidentiary rules.
Medical and Forensic Evidence
Medical examinations and forensic testing may provide evidence relevant to a sexual assault investigation.
Depending on the case, the defense may evaluate the collection, preservation, testing, interpretation, and limitations of that evidence.
The absence of DNA evidence or physical injury does not automatically establish that a sexual assault did not occur. Likewise, the presence of biological evidence does not necessarily resolve disputed issues concerning consent or the circumstances of the alleged conduct.
Witness Statements
Witness testimony may be central to a sexual assault prosecution.
Defense counsel may review prior statements, interview available witnesses, and compare accounts with other evidence.
The purpose is to assess reliability and determine whether the prosecution can establish the charged offense beyond a reasonable doubt.
Digital and Location Records
Depending on the allegations, surveillance footage, location information, rideshare records, access logs, and other records may help establish a timeline.
Some records are retained for limited periods, making early identification and preservation important.
Our Sexual Assault Defense Services for Fremont Clients
The Nieves Law Firm represents clients facing investigations and charges involving:
- Rape defense: Penal Code § 261
- Sexual battery defense: Penal Code § 243.4
- Lewd acts involving minors: Penal Code § 288
- Sexual penetration offenses: Penal Code § 289
- Unlawful sexual intercourse with a minor: Penal Code § 261.5
- Indecent exposure: Penal Code § 314
- Sex offender registration issues: Penal Code §§ 290 and 290.5
- Pre-filing sexual assault investigations
- Sexual misconduct allegations involving disputed consent
- Sexual assault allegations involving mistaken identification or disputed facts
We also represent clients facing related criminal charges and evaluate possible immigration, professional licensing, and registration consequences.
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If you or someone you care about is facing criminal charges in the Bay Area, the next decision matters. Call us for a confidential consultation.
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Will I Have to Register as a Sex Offender Under California Penal Code § 290?
Certain California sex offense convictions require mandatory registration under Penal Code § 290. Other offenses may result in a discretionary registration requirement when authorized by law.
Whether a person must register depends on the specific conviction, statutory subdivision, and applicable registration provisions.
California uses a tiered sex offender registration system.
| Registration tier | General registration requirement |
|---|---|
| Tier 1 | Minimum 10-year registration period |
| Tier 2 | Generally a minimum 20-year registration period |
| Tier 3 | Generally lifetime registration, subject to limited exceptions |
Tier 1 Registration
Tier 1 generally requires a minimum registration period of 10 years for qualifying adult offenses.
Completing that period may make an eligible individual able to petition for termination of the registration requirement.
Tier 2 Registration
Tier 2 generally requires a minimum registration period of 20 years.
However, certain qualifying Tier 2 registrants may be eligible to petition after 10 years if they satisfy the specific requirements established by Penal Code § 290.5.
Tier 3 Registration
Tier 3 generally requires lifetime registration.
A limited category of individuals assigned to Tier 3 solely because of their risk assessment may qualify to petition after 20 years, provided they satisfy the statutory requirements and are not subject to an exclusion.
Does Sex Offender Registration Automatically End After 10 or 20 Years?
No.
Completing the minimum registration period does not automatically terminate the duty to register.
Under Penal Code § 290.5, eligible individuals generally must petition the appropriate superior court and obtain an order granting termination.
Eligibility depends on several factors, including the applicable tier, qualifying registration period, conviction history, compliance with registration requirements, and statutory restrictions.
Some convictions and circumstances may prevent termination even after the minimum registration period has been completed.
Our attorneys evaluate registration exposure when defending current charges and can assess whether an individual may qualify for relief from an existing registration requirement.
What Are the Criminal Charges and Penalties for Rape and Sexual Battery in California?
California imposes substantial penalties for rape, sexual battery, and other sex offenses.
The possible sentence depends on the offense, the statutory subdivision charged, the alleged victim’s age, the circumstances of the conduct, and applicable sentencing enhancements.
| Criminal charge | Classification | General statutory punishment |
|---|---|---|
| Rape under PC § 261 | Felony | 3, 6, or 8 years in state prison under the general sentencing provision |
| Forcible rape of a child under 14 under PC §§ 261(a)(2), 264(c) | Felony | 9, 11, or 13 years in state prison |
| Forcible rape of a minor aged 14–17 under PC §§ 261(a)(2), 264(c) | Felony | 7, 9, or 11 years in state prison |
| Misdemeanor sexual battery under PC § 243.4(e) | Misdemeanor | Up to 6 months in county jail, a fine of up to $2,000, or both |
| Sexual battery under PC § 243.4(a)–(d) | Misdemeanor or felony | Misdemeanor: up to 1 year in county jail and a fine of up to $2,000. Felony: 2, 3, or 4 years in state prison and a fine of up to $10,000 |
These are general statutory sentencing ranges, not predictions of an individual defendant’s sentence.
Actual sentencing exposure may depend on multiple charges, prior convictions, enhancements, the particular statutory subdivision, and other provisions of California law.
Additional offenses involving minors, including violations of Penal Code §§ 261.5 and 288, have their own elements and sentencing provisions.
A conviction may also create consequences involving sex offender registration, immigration status, professional licensing, employment, and other legal restrictions.
Evaluating the full consequences of the charged offense is an important part of criminal defense representation.
Our Sexual Assault Case Process in Fremont
1. Initial Case Review
We begin by evaluating the circumstances of the allegation, the client’s legal concerns, and the current status of the investigation or criminal case.
We discuss the available information, possible charges, immediate legal concerns, and potential next steps.
Communications with attorneys and their authorized representatives may receive confidentiality and privilege protections under applicable law, depending on the circumstances.
2. Independent Investigation
Our defense team examines available evidence rather than relying exclusively on the prosecution’s interpretation of events.
Depending on the case, that investigation may involve:
- Text messages and social media communications
- Surveillance footage and photographs
- Rideshare, location, and access records
- Medical records and forensic evidence that can lawfully be obtained
- Witness interviews and statements
- Law enforcement reports and recorded interviews
- Other digital or physical evidence relevant to the allegations
In sexual battery cases under Penal Code § 243.4, the circumstances of the alleged touching can be critical.
Depending on the subdivision charged, the prosecution may need to establish elements involving restraint, incapacitation, sexual intent, or other statutory requirements.
Our attorneys examine whether the available evidence supports each element of the charged offense.
3. Pre-Filing Advocacy
Not every sexual assault investigation results in criminal charges.
When a case is still under investigation, defense counsel may have an opportunity to communicate with law enforcement or the Alameda County District Attorney’s Office before a filing decision.
Where appropriate, our attorneys may present relevant evidence, identify factual or legal weaknesses, or provide information that prosecutors should consider when evaluating the allegations.
A decision not to file criminal charges does not necessarily eliminate an arrest or investigative record. Separate legal procedures may be available to address qualifying records.
4. Arraignment and Release Conditions
After criminal charges are filed, the defendant generally appears for arraignment at the courthouse assigned to the case.
Criminal matters arising in Fremont are handled through the Alameda County Superior Court. The assigned courthouse depends on the charges, procedural stage, and court’s current assignment procedures.
At arraignment, the court addresses the criminal charges, legal representation, plea, release conditions, and future proceedings.
Our attorneys advocate for appropriate release conditions and help clients understand any criminal protective orders or restrictions imposed by the court.
5. Preliminary Hearing
In a felony case prosecuted by complaint, a preliminary hearing generally provides an opportunity for the defense to challenge whether sufficient evidence exists to hold the defendant to answer on the charged offenses.
The prosecution’s burden at a preliminary hearing is different from its burden at trial.
The court determines whether there is sufficient cause to believe that the charged offense was committed and that the defendant committed it. The prosecution is not required to prove guilt beyond a reasonable doubt at this stage.
If the court finds insufficient cause, the defendant may be discharged as to the unsupported charges, although further proceedings may be legally available.
6. Pretrial Motions and Negotiation
Before trial, defense counsel evaluates whether motions may be appropriate to challenge evidence, seek disclosure, address constitutional violations, or resolve legal issues affecting the prosecution.
Our attorneys also assess whether negotiations may produce an appropriate resolution based on the evidence, legal exposure, and client’s objectives.
Under Penal Code § 1382, a felony trial generally must commence within 60 days after arraignment on the information or indictment, subject to applicable waivers, statutory exceptions, and good-cause continuances.
That deadline ordinarily differs from the initial arraignment on a felony complaint.
7. Trial Preparation and Trial
If a case proceeds to trial, the prosecution must prove every element of the charged offense beyond a reasonable doubt.
Our attorneys prepare to challenge the prosecution’s evidence through cross-examination, legal argument, admissible defense evidence, and applicable procedural protections.
Throughout the case, we work with clients to evaluate the available options and make informed decisions about their defense.
Frequently Asked Questions About Sexual Assault Charges in Fremont
Do I Need a Lawyer Before I Am Actually Charged?
No law requires you to wait until criminal charges are filed before hiring a defense attorney.
During a pre-filing investigation, a lawyer can advise you about communicating with law enforcement, help preserve evidence, investigate the allegations, and evaluate whether information should be presented to prosecutors.
Early representation may provide important opportunities to protect your rights before a formal charging decision.
Can I Be Charged With Sexual Assault Without Physical Evidence?
Yes.
California prosecutors may file sexual assault charges even without DNA evidence, physical injuries, or eyewitness testimony.
A complaining witness’s testimony may be sufficient to support a conviction if the jury finds that the prosecution has proved every required element beyond a reasonable doubt.
However, the absence of physical evidence, inconsistencies in statements, digital communications, and other circumstances may be relevant to evaluating the prosecution’s case.
A defense attorney examines both the evidence supporting the allegations and information that may create reasonable doubt.
What Happens if the Person Accusing Me Changes Their Story?
Inconsistent statements may become important evidence in a sexual assault prosecution.
Defense counsel may compare law enforcement interviews, prior statements, text messages, testimony, and other records to identify material differences.
However, not every inconsistency establishes that an allegation is false or unreliable.
The significance of inconsistent statements depends on the facts, the explanations for the differences, and their relationship to the elements of the charged offense.
Can I Be Investigated for Sexual Assault Without Being Arrested?
Yes.
Law enforcement may investigate sexual assault allegations before making an arrest or seeking criminal charges.
Detectives may interview witnesses, collect electronic communications, review medical evidence, and contact the person accused.
An individual may be under investigation even if no criminal complaint has been filed.
If you learn that you are being investigated, speaking with a criminal defense attorney can help you understand your rights and options before responding to investigators.
Can the District Attorney File Charges if the Accuser No Longer Wants to Proceed?
Yes.
In California, criminal charges are prosecuted by the government, not by the person who reported the alleged offense.
Although a complaining witness’s willingness to participate may affect the prosecution’s ability to prove its case, that person’s request to withdraw an allegation does not automatically require the district attorney to dismiss charges or decline prosecution.
The prosecution must independently evaluate whether sufficient evidence exists to support the charged offenses.
Can a Sexual Assault Charge Be Dismissed Before Trial?
Yes.
Depending on the circumstances, a sexual assault case may be dismissed before trial.
Dismissal may occur because prosecutors determine that the evidence is insufficient, the court grants a legally supported motion, or another circumstance warrants dismissal.
In felony cases, a defendant may also be discharged following a preliminary hearing if the magistrate finds insufficient cause to hold the defendant to answer, although further proceedings may sometimes remain possible.
Whether dismissal is available depends on the particular evidence and procedural posture of the case.
Can a Sexual Assault Charge Affect My Green Card, Visa, or Naturalization?
Yes.
Certain California sex offense convictions may qualify as crimes involving moral turpitude, aggravated felonies, or other offenses carrying immigration consequences under federal law.
Depending on the conviction and immigration circumstances, potential consequences may include removal proceedings, inadmissibility, difficulty obtaining immigration benefits, or barriers to naturalization.
Immigration consequences are highly offense-specific. Individuals who are not United States citizens should obtain an individualized immigration analysis before accepting a plea agreement.
If the Charges Get Dropped or Dismissed, Does the Arrest Still Show Up on Background Checks?
Possibly.
An arrest or court record may remain even if criminal charges are never filed or a case is dismissed.
Whether the record appears on a particular background check depends on the type of record, applicable reporting restrictions, and the circumstances of the case.
California provides certain forms of arrest record relief, including relief under Penal Code § 851.91 for qualifying arrests that did not result in a conviction.
Eligibility depends on the statutory requirements and the history of the case.
Where Will My Fremont Sexual Assault Case Be Heard?
Criminal cases arising in Fremont are handled by the Alameda County Superior Court.
The Fremont Hall of Justice, located at 39439 Paseo Padre Parkway, Fremont, CA 94538, handles criminal matters, including misdemeanor proceedings and South County criminal trials.
Depending on the charges and stage of the case, certain felony proceedings may be assigned to another Alameda County courthouse.
The assigned courthouse and department should be confirmed through the official court notice, court calendar, or defense attorney.
I Was Served With a Protective Order Before My First Court Date. What Am I Not Allowed to Do?
A criminal protective order may restrict contact with the person identified in the order.
Depending on its specific terms, the order may prohibit direct or indirect contact, restrict physical proximity, or impose other conditions.
Some protective orders prohibit all contact, while others may permit specified forms of peaceful contact.
The actual language of the order controls. Violating a valid court order can result in additional criminal consequences.
An attorney can review the order, explain its requirements, and determine whether requesting a modification may be appropriate.
About The Nieves Law Firm
Founded in 2012, The Nieves Law Firm, APC represents people facing criminal investigations and prosecutions throughout Fremont, Alameda County, the Greater Bay Area, and Sacramento.
Our criminal defense practice includes felony and misdemeanor cases, sexual assault allegations, restraining orders, and post-conviction matters.
We understand that being accused of a sex offense can threaten far more than a person’s freedom. Professional credentials, immigration status, relationships, financial stability, and reputation may also be at stake.
Our attorneys evaluate the evidence, explain the legal consequences, and develop defense strategies based on the specific circumstances of each case.
We represent English- and Spanish-speaking clients.
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Local Resources for Sexual Assault Cases in Fremont
Alameda County Superior Court, Fremont Hall of Justice
Address: 39439 Paseo Padre Parkway, Fremont, CA 94538
Phone: 510-818-7500
The Fremont Hall of Justice provides criminal court services. Court assignments may vary depending on the charges and procedural stage.
Visit the official Fremont Hall of Justice website
Alameda County Superior Court, Criminal Division
The Alameda County Superior Court’s Criminal Division provides information about criminal proceedings, court calendars, protective orders, criminal records, and courthouse locations.
Visit the Alameda County Superior Court Criminal Division
Fremont Police Department
The Fremont Police Department investigates criminal allegations within its jurisdiction, including reports of sexual assault.
Visit the Fremont Police Department
Alameda County District Attorney’s Office
The Alameda County District Attorney’s Office prosecutes criminal offenses on behalf of the People of the State of California within Alameda County.
Visit the Alameda County District Attorney’s Office
Talk to a Fremont Sexual Assault Defense Lawyer Today
If you are being investigated for sexual assault or have already been charged, obtaining legal advice early can make a meaningful difference in how you approach the case.
Evidence can become harder to obtain over time, witnesses’ recollections may change, and statements made during an investigation may affect subsequent proceedings.
At The Nieves Law Firm, we represent individuals facing serious allegations involving rape, sexual battery, and other California sex offenses.
We can help you understand the charges, assess potential consequences, identify issues in the prosecution’s evidence, and evaluate available defense strategies.
Contact The Nieves Law Firm today to discuss your situation with our criminal defense team.
No judgment. No pressure. Just a clear explanation of the legal issues, potential consequences, and options available to you.
