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Criminal Process for DUI
by Petra
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The criminal process can be complex and
confusing. But it's important to know your legal rights. The best way to
be informed is to contact an attorney in your area as soon as possible.
A criminal defense attorney will understand the law as it relates to the
crime you've been charged with, and will be able to help you in making
informed decisions as your case moves through the process.
Stop
You may be stopped for questioning by the
police. A stop is not the same as an arrest because, although you may be
detained, you aren't moved to a different location. During a stop the
police officer may ask you questions, but you have the right to refuse
to answer.
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Search Warrants
A search warrant authorizes police to
conduct a search of a specific, place such as your residence. In order
for a warrant to be issued by a judge, "probable cause" is
necessary.
Probable cause to search means that:
It is more likely than not that the
specific items to be searched for are connected with criminal activities.
Those items will be found in the place to
be searched.
Warrantless Searches
The general rule is that warrants are
required for searches. But search warrants are not required for the
following:
Searches incident to arrest: Police
officers are permitted to search your body and/or clothing for weapons
or other contraband when making a valid arrest.
Automobile searches: If you're arrested
in a vehicle, the police may search the inside of the vehicle. To
perform a complete search of the vehicle (such as in locked glove
compartments, for example), probable cause is necessary.
Exigent circumstances: Searches may be
conducted if there are "exigent circumstances" which demand
immediate action, such as to avoid the destruction of evidence.
Plain view: Police do not need a search
warrant when they see an object that is in plain view of an officer who
has the right to be in the position to have that view.
Consent: If you consent to a search of
your body, your vehicle, or your home, police are not required to have a
warrant. You aren't required to consent to any police searches.
Arrest
In order to be arrested, there must be
what's called "probable cause." This means that there must be
a reasonable belief that a crime was committed and you committed the
crime. An arrest warrant is not necessary.
After you're placed under arrest, you are
protected by constitutional rights. Two important rights to be aware of
are right to remain silent and the right to have an attorney. After your
arrest, you aren't required to say anything else to police or
investigators, until you have an attorney present. You must be given the
opportunity to contact an attorney.
Miranda Rule
Under the Miranda Rule, if you are in
police custody you must be informed of specific constitutional rights
before interrogation begins. Those rights are as follows:
The right to remain silent
The right to have an attorney present
during questioning
The right to have an attorney appointed
if you are unable to afford one
Important to note is that Miranda rights
do not have to be read until you are taken into custody. That means that
you can be questioned by the police before being taken into custody, and
anything you say at that point can be used against you later in court.
Booking
After you're arrested, the police will
bring you to the police station for the booking process . You'll be
fingerprinted and asked a series of questions, such as your name and
date of birth. You'll also be searched and photographed. Your personal
property such as jewelry will be catalogued and stored.
Appointment of an Attorney
In California, if you cannot afford to
hire an attorney, and if you are charged with a crime that is punishable
by incarceration, an attorney will be appointed to defend you. Usually a
public defender will be appointed as your attorney.
Once a public defender has been appointed
to defend you, you may ask the court to appoint a substitute attorney if
you and your attorney are having such serious disagreements that your
relationship is jeopardized. But you are not entitled to choose a
particular attorney as appointed counsel.
Arraignment
Once criminal charges are filed, you'll
make a court appearance which is known as an "arraignment." If
you are incarcerated, this will usually occur within 72 hours of your
arrest. During your arraignment, you'll be asked
to enter a "plea" to the crime you've been charged with.
California pleas and corresponding definitions follow:
Guilty plea: If you plead
"guilty," you're admitting to the facts of the crime and the
fact that you were the one who committed that crime.
Not guilty plea: A "not guilty"
plea asserts that you did not commit the crime with which you were
accused. After your plea, a pre-trial or trial date will be set.
No contest plea: A "no contest"
plea indicates that, while you are not admitting guilt, you do not
dispute the charge. This is preferable to a guilty plea because guilty
pleas can be used against you in later civil lawsuits.
"Mute" plea: In California, you
may "stand mute" instead of making a plea. The court will then
enter a plea of not guilty. By standing mute, you avoid silently
admitting to the correctness of the proceedings against you until that
point. You are then free to attack all previous proceedings that may
have been irregular.
If you plead "guilty" or
"no contest," there will not be a trial. You'll then be
sentenced.
During the arraignment, the court will
also:
Set bail
Refuse to set bail; or
Release you on your own personal
recognizance, which means that the court takes your word that you will
appear when necessary for later court obligations
Bail/Bond
"Bail" is money or property put
forth as security to ensure that you'll show up for further criminal
proceedings.
In California, bail can be paid:
In cash
A pledge of property (if permitted in
that court)
A bail bond
A professional bail bondsman is an
individual whose business is to pledge his or her own property or
security to guarantee the bail bond to the court.
Speedy Trial
You have a right to a speedy trial under
the Sixth Amendment of the United States Constitution, which requires
that the trial be held within a certain time frame after a person has
been charged with a crime.This right can be waived by asking for
additional time for the preparation of your defense.
Speedy trial rights in California:
With exceptions, a defendant should be
brought to trial in California within 60 days for both felony and
misdemeanor crimes.
Trial
Many prosecutors will consider "plea
agreements," although it's not legally required. If you don't reach
a plea agreement with the prosecutor, your proceedings will move toward
the trial stage.
Usually, if you are charged with a crime
punishable by six or more months of imprisonment, you have the right to
a jury trial. This right may be waived by:
Pleading guilty, or
Choosing a bench trial (a trial in front
of a judge only)
If you request a bench trial, the judge
will perform the fact-finding function that is usually performed by the
jury.
Appeals
If you're found guilty after a trial,
you're entitled to an appeals process. This process varies depending
upon the crime, but there are always time deadlines by which you must
file an appeal.In California, in criminal cases not
involving the death penalty, you generally have 60 days following the
judgment to file an appeal. Appeal of death sentences is automatic.
There are numerous reasons for an appeal
from a guilty verdict in a criminal case, including what's called
"legal error." Legal error may include:
Allowing inadmissible evidence during the
criminal process, including evidence that was obtained in violation of
your constitutional rights
Lack of sufficient evidence to support a
verdict of guilty
Mistakes in the judge's instructions to
the jury regarding your case
You may also appeal due to misconduct on
behalf of the jurors, or if there is newly discovered evidence to
exonerate you.
In California, if you entered a plea of
guilty or no contest, you may only appeal if the following conditions
are met:
You filed with the trial court a written
statement under oath or penalty of perjury showing reasonable
constitutional, jurisdictional, or other grounds relating to the
legality of the proceedings that occurred in your case.
The trial court has filed a certificate
of probable cause for the appeal with the clerk of the court.
Expungement
In California, under some circumstances,
you may be able to have your criminal records expunged, which means that
you may be released from further criminal penalties and disabilities
such as a loss of voting rights. In some cases, expungement involves
sealing and/or destruction of records.
You may be eligible for an expungement
if:
You have successfully completed
probation, or
You were convicted of a misdemeanor and
have fully performed any sentence, or
Charges against you were dismissed or you
were found not guilty
If you are eligible for an expungement
following a conviction, the court may enter an order setting aside your
guilty plea or a verdict of guilty and dismissing the case. You may also
petition to seal the records from public view. If you were never
convicted of an offense, you may petition the law enforcement agency
that has your records to seal and eventually destroy them.
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