Arrested and waiting for court date - can anything be done? (Orange County Criminal Defense)

April 13, 2010

What can you do before your Orange County court date?

If you were arrested, but then released on bail or on your own recognizance (an “O.R.” release) and have a court date coming up, is there anything that can be done, or do you have to wait for your court date?

Your arrest doesn’t signal the end of an investigation against you - it’s only the beginning of the legal process. Unless the police conclude their entire investigation against you, they can still be building a case, even after your arrest and before your first court appearance.

What happens to your report after your arrest?

The police write up their reports and put together a packet to submit to the prosecution. In all felonies in Orange County, they go to the District Attorney’s office. For misdemeanor cases, they will go to the DA’s office as well unless there is a City Attorney that handles the misdemeanor cases in their jurisdiction (for example, the Anaheim City Attorney’s office handles misdemeanors committed in the city of Anaheim). They will include the reports and your criminal history (”rap sheet”) for the prosecutor to review.

Once the DA gets your case, it gets assigned to an attorney to review for filing. That attorney will make one of three choices - 1) decide there’s enough to file as the case stands and they’ll file charges. 2) they can decide there’s not enough evidence to support the filing of charges and reject the case entirely or 3) they can send it back to the police for clarification and further investigation, leaving it up to them to re-submit it.

So do you just sit back and wait?

Usually, that’s not a good idea. The vast majority of cases submitted to the DA end up getting filed. If you sit back and wait until your court date, you’ve lost valuable time building your side of the case.

But don’t they have the burden of proof?

Yes, the prosecution has the burden of proving the charges beyond a reasonable doubt, but that doesn’t mean you can’t start helping yourself. First and foremost, don’t hurt yourself by helping the prosecution. Don’t discuss your situation with anyone except a criminal defense attorney in a confidential setting. Assume that anything you say to anyone will end up being used against you. That means no Myspace posts, no Facebook comments, no Twitter, no text messages, emails, voice mails…. nothing.

What can an attorney do now before court?

After discussing the case, often I will hear something that I think the police may have overlooked in their investigation. Did they fail to interview witnesses? Did they not document your injuries? I had a client charged with domestic violence, but the police completely ignored her injuries. By documenting those right away and properly, we were able to establish a mutual combat defense that led to the dismissal of all charges. Gathering witness statements and information before memories fade can be crucial.

Remember - the DA is only relying on what’s in the police reports to make a determination about filing charges against you. By presenting additional information and your side of things, the DA may be convinced to not file charges in the first place. You can’t present this to the DA yourself - anything you say could be used against you and the DA won’t speak with you directly, since you’re the one accused of the crime.

What else can you do?

Depending on the facts of the case, doing positive things can also help get us in the best position from the very first court appearance. Counseling, AA meetings, taking positive steps towards fixing the situation may help with remaining out on bail without an increase, getting a reduction in charges, a lower sentence or a dismissal of charges once we get to court.

Every case is unique. Let me know if you want to discuss yours further.

Orange County Defense Attorney - Joe Dane

(714) 532-3600

info@joedane.com

See these links for more information:

Do you need a defense attorney?

What if no charges are filed by your court date?

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DUI Checkpoint Friday 3/19/10 in San Clemente, Orange County

March 18, 2010

The Orange County Sheriff’s Department announced today that they’re conducting a “traffic safety” checkpoint in San Clemente this Friday night, March 19, 2010 between the hours of 6:00 p.m. and 2:00 a.m.

Let’s face it, it’s a DUI checkpoint. In their press release, they say that it’s also to check for people that are not driving with a valid license as well as DUI. Sure.

Should you get caught up in a checkpoint and find yourself pulled aside for further screening, remember - even though they may not be required to read you your Miranda rights (see this post for more information), you don’t have to incriminate yourself and help them build a case against you. You can politely, but firmly, decline to answer their standard questions, including the one that gets the ball started - “Have you been drinking?”

If you are arrested in a DUI checkpoint “Traffic Safety” checkpoint, they are not a guarantee that you’ll be convicted of DUI. First, there are certain legal requirements that must be followed in setting up and conducting the checkpoint. The DA must still be able to prove beyond a reasonable doubt that you were driving under the influence . . . without any bad driving, since you were stopped at a checkpoint.

The blood alcohol level is also subject to attack, depending on the facts of your case. (See these links for more: 0.08% doesn’t always equal DUI; inaccuracies in blood alcohol levels)

Keep in mind that if you were recently arrested for DUI, you only have 10 days to contest the DMV suspension of your license.

Every case is unique. To discuss your case further, give me a call and we’ll set up a time to meet and talk.

Joe Dane, Orange County Defense Attorney

info@joedane.com

(714) 532-3600

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How long can you be detained by the police in Orange County?

March 18, 2010

Detention by the police

People ask me often - “I was stopped by the police and they kept me for a really long time. Can they do that?”

The first question is: Were you there voluntarily or were you detained? That simple question can have huge impact on what the police can and can’t do, what your rights are and whether or not any statements or evidence is legally admissible against you.

Were you there voluntarily?

As long as the police are in a place they have a lawful right to be, they can contact anyone they want without any legal excuse or justification. This is a “consensual encounter.” The key is that the person they’re contacting must be free to go. They have to feel free to leave and to not cooperate. If the police do or say anything that changes this, then it’s no longer a consensual encounter and you have been detained. However, if you agree to stay, then the answer to how long can they keep me is, “However long you let them.” If you want to go, unless they have more, you can go. If you’re ever in a situation where you’re not sure if you’re detained or not, ask them if you’re free to go. If they say no, you’re detained.

You’re detained. Now what?

During a detention, you are not free to leave, but it’s not to the same full custody level as an arrest. They can use reasonable force to keep you there (for example, handcuffing you or putting you in the back of a patrol car). During a detention, they may continue to question you, but importantly, they do NOT have to read you your Miranda rights. Do you still have a right to remain silent and not implicate yourself? Absolutely, but during a detention, they don’t have to warn you before questioning you. It’s up to you to remember and exercise your rights. If they ask you questions, you can always decline, saying you’d like to consult with an attorney before answering any questions.

How long can they detain you?

The vague answer is: As long as it takes to investigate the underlying reason for the detention. For example, if you’re driving down the street and they pull you over for a burnt out tail light, they can stop you and detain you for a reasonable amount of time to get your driver’s license, registration, proof of insurance and to write a ticket. During that time, they may run you to see if your license is suspended, etc., but they can’t hang onto you for any longer than necessary to handle the traffic stop. What if their computers are slow and they can’t run you for 45 minutes? That seems a bit excessive for a simple traffic stop and is probably too long, making your detention illegal.

If, however, they find something during the initial detention that gives them a new reason to detain, they can extend the detention period further to investigate the new information. The classic example is a traffic stop for expired registration, but when they approach the driver, they smell alcohol. This new information (smell of alcohol) may allow them to now switch gears and do a DUI investigation, something that can take longer than a simple traffic ticket.

What does it matter if it’s a consensual encounter or detention?

You are free to not cooperate during a consensual encounter. You could tell them your name is Mickey Mouse if you wanted and there isn’t a crime. During a detention, if you choose to speak to officers, you cannot give false information, such as falsely identifying yourself. You also can’t resist arrest or the detention.

Another important difference is that during a consensual encounter, the police have no legal authority to search you unless you consent. They can always ask if you will allow them to “pat you down” or search you, but you can decline during a consensual encounter. During a detention, they have a very limited ability to search you - if they can legally justify the detention PLUS have additional facts to justify a limited search, they can do a pat-down for weapons only. During a detention, they can’t do a full search of your pockets, wallet, etc. without your consent. Keep that in mind. You always have the right to decline a search by the police. If they search without your consent, especially if they do a full search without justification, we may be able to suppress evidence they want to use against you.

Every case is unique. To discuss your situation further, give me a call and we’ll make time to talk.

Joe Dane, Orange County Defense Attorney

info@joedane.com

(714) 532-3600

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St. Patrick’s Day - DUI Roving Patrols planned in Orange County

March 16, 2010

The Orange County Sheriff’s Department just announced that they’re planning a joint operation with the CHP to add extra “roving patrols” for DUI enforcement Wednesday, March 17, 2010 - St. Patrick’s Day.

I’ve written about these “roving patrols” before - there are no special rules just because they call themselves a “DUI patrol.” They must still make a valid, legal stop and conduct the investigation properly for the case to stand up in court.

See these links for information about how field sobriety tests and answering their questions are voluntary:

DUI and Miranda rights - You don’t have to admit anything!

If you are arrested, you have 10 days to challenge the DMV suspension

Is the 0.08% result in your case accurate?

“One for the road?” - the inaccuracy of blood alcohol results in DUI cases

Be safe.

Joe Dane, Orange County Defense Attorney

info@joedane.com

(714) 532-3600

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Contacted by an investigator? Should you call back? - Orange County Defense

March 16, 2010

I got a card on my door - should I call this detective back?

You get home from work one night and there’s a business card on your front door. It’s from an investigator or detective from the police department. There’s a hand-written note on the back, “Please call me.”

What’s the harm in calling back?

Before you can safely answer that, do you know with 100% certainty why they want to talk to you? Are you being accused of a crime and they’re looking for a statement they can use against you? Do they have a warrant for your arrest and are trying to figure out when you’re home so they can come scoop you up? Are you a potential witness to a crime, but if you say the wrong thing, you can easily talk yourself into being involved at some level? What should you do?

First - think hard. Why is a cop looking for you?

You’re a suspect in a criminal case.

Here are some problems with calling them back blindly:

First, over the phone, you’re not “in custody,” so they have no obligation to read you your Miranda rights or otherwise warn you about using your statement against you. There’s no such thing as “off the record” when it comes to discussing a criminal case with an investigator. Assume anything you say can and will be used against you, even if they don’t warn you first. Even if you just admit even being present at an incident, you may have given them a positive I.D., sealing the deal for them.

Next, even if you make a statement that denies any involvement with whatever they’re investigating, how can you be sure they’re writing down your statement accurately? What if you make in innocent misstatement about certain times you got somewhere or when you left? You could have blown an alibi defense or made a statement that’s tough to get away from later.

Maybe they have a warrant for your arrest.

Let’s face it. Budgets are tight everywhere. If they have an arrest warrant for you, they can sit on your house until you come home, but unless it’s a serious violent offense, they probably won’t waste the manpower to do that. If you call them and they find out you’re home, they can then go out and scoop you up.

What’s the big deal? If they have a warrant, won’t they arrest you anyway? Maybe. If you contact an attorney, they can determine if there’s a warrant for you, how much the bail amount is and whether or not a surrender can be arranged without having to go into custody. Even if you have to turn yourself in, you can make arrangements ahead of time to have a bail bondsman waiting so you don’t have to spend time in jail.

I’m just a witness. How could it hurt to call them back?

Are you sure? Depending on the facts and circumstances, a person’s involvement (or what they think they can prove your involvement was) can make a huge difference. If by making a statement about being present somewhere during a crime, even if you think you’re distancing yourself from it, could get you involved. How? There are two ways to be involved as a principal in a criminal case: Those that actually do the crime and those that “aid and abet.” (See this link for more details.) If they think your presence in any way encouraged or facilitated the underlying crime, you’ve just landed in the middle of a criminal case. A person who aids and abets can be charged and punished just the same as the one that did the crime. If you tell them that you “just drove your friend home,” you could be admitting to being an accessory - a crime in and of itself.

Be safe. If the police are looking for you, they’re not out to protect your interests. It’s up to you. Contact a criminal defense attorney to discuss things. Maybe it is no big deal, but before you make a huge mistake, figure out what’s really going on.

Joe Dane - Orange County Criminal Defense Attorney

info@joedane.com

(714) 532-3600

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