Our experienced lawyers at the Abrate & Olsen Law Group understand that when you are in need of our legal services, you may have many questions you are looking for answers to. We always welcome you to schedule a free consultation to discuss your unique legal needs and situation.
We have compiled many of the most frequently asked questions we get from our estate planning, business entity/formation, criminal defense, and commercial debt collection.
Do I need an attorney or can I just plead guilty to all charges?
ALWAYS seek the advice of an attorney. Experienced criminal defense attorneys, including those at Abrate & Olsen, understand the law and will advocate for your best interests. Attorneys familiar with the legal system have the best chance of obtaining a not guilty verdict, securing a favorable plea bargain, or managing an outright dismissal of all charges. If convicted, an attorney can effectively mitigate on your behalf in order to secure the best possible sentencing scenario. Due to the numerous rules and intricacies of the Court system, it is wise to hire an attorney in lieu of handling the case on your own. Beware of any attorney who makes promises or guarantees regarding your case. There are very few guarantees when it comes to the criminal justice system!
Can the Police ask questions before placing me under arrest?
The Police are able to ask basic, identifying information questions without violating the Miranda requirement. Do not provide information beyond your name, address, date of birth, and social security number. Be polite and respectfully decline to answer additional questions.
What is the difference between a Felony and a Misdemeanor?
The distinction involves prison time. Felony
convictions result in the possibility of six months or longer in prison as opposed to local jail time. A misdemeanor
is punishable by less than a year in local jail. Felony charges are attached to more serious offenses, such as murder, rape
, kidnapping, and drug trafficking
. Misdemeanor charges are typically filed in cases involving theft, criminal damaging, drug possession, OVI or DUI, and domestic violence. Subsequent arrests for certain offenses, including OVI or DUI and domestic violence, lead to felony charges.
What are Miranda warnings? Do they have to be read?
An individual must be informed of his or her Miranda warnings during a custodial interrogation. To put it simply, you must understand your rights if you are asked questions and are no longer free to leave. Although the case will not be dismissed if Miranda warnings are omitted, any statements or evidence obtained from the statement, made while in custody, will be excluded from the case. Voluntary statements or spontaneous statements made prior to Miranda may be admitted in Court.
The following is an inclusive Miranda warning:
“You have the right to remain silent and refuse to answer questions. Do you understand? Anything you do say may be used against you in a court of law. Do you understand? You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand? If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand? If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand? Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?”
Do I have to answer questions?
Absolutely not. Speaking to the Police Officer or Investigators provides the government evidence to use against you. Scare tactics and vague assurances to help you in Court may be used to encourage you to speak about a specific incident or offense. Politely refuse to answer any questions and invoke your constitutional right to speak with an attorney. While it is okay to answer basic, identifying information questions such as your name, address, date of birth, and social security number, do not answer any questions related to the investigation. Trying to explain your actions will most likely make things worse for you.
The Police lied to me. Can they do that?
Yes. The Supreme Court has consistently ruled that Police Officers can lie and manipulate information in order to obtain a confession from you.
The victim no longer wants to press charges in this matter. Does that mean my case is over?
Not necessarily. The victim can voice concerns or opinions, but the State actually is prosecuting the case. Once charges are filed, the State becomes the victim in the case. The State will surely run into difficulty if the victim refuses to show up for Court or changes a story during testimony. This is more often seen in domestic violence cases where the parties have reconciled.
Do all criminal cases go to trial?
In fact, very few cases actually make it to the trial stage. The majority of all criminal cases are resolved through some type of plea bargaining arrangement prior to trial. Each case is unique and a plea bargain or trial setting depends upon the strength of the case, evidence and testimony, and even the Court or specific Judge.
Do I have to let the Police search my vehicle? What about my house?
The Fourth Amendment to the Constitution of the United States of America states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Police are held to specific rules and guidelines when it comes to conducting searches. A search warrant for a home must be specific in nature. Officers may only search the place explicitly described in the search warrant. Police can remove items so long as they are described in the warrant. However, if additional contraband is in “plain view” during the search, Police may remove it as well and potentially file criminal charges. Vehicle searches are a different matter. Officers can legally search a vehicle if contraband is in “plain view.” Police can also search a vehicle if they develop probable cause. For example, a strong odor of marijuana coming from a vehicle will likely lead to a search. In all other instances, a search warrant is required unless consent to search is given. DO NOT EVER PROVIDE A WRITTEN OR VERBAL CONSENT TO SEARCH YOUR VEHICLE!!! Police must have probable cause to search. Do not provide them with probable cause!!!
What is the standard of proof in a criminal case?
The prosecution is required to provide proof beyond a reasonable doubt that the alleged offense occurred and the Defendant was responsible for committing the offense. Reasonable doubt, in California, is present when, after you have carefully considered and compared all the evidence, you cannot say you are FIRMLY CONVINCED of the truth of the charge. Reasonable doubt is not mere possible doubt, because everything relating to human affairs is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her own affairs. The Judge or Jury should be left with absolutely no doubt in their minds as to whether or not the Defendant should be held accountable and punished.
What is probable cause?
Probable cause is the standard by which an arrest is made in the United States. California law defines probable cause as “whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. (Beck v. Ohio, 379 U.S. 89 (1964))
What is the difference between Procedural and Substantive Law?
Procedural law pertains to the process by which the criminal justice system operates. Procedural law covers the rules of the court and the manner in which a case proceeds from the arrest to the conclusion of the case. Substantive law refers to the written law itself. Substantive law is summarized as the creation, definition and regulation of the law.
Are there any differences between Adult Court and Juvenile Court?
The terminology used in each Court is entirely different. For example, an adult is found guilty whereas a juvenile
is adjudicated delinquent. An adult offender is listed as the defendant; a juvenile offender is referred to as the respondent. A complaint is filed in adult court instead of the petition used for juvenile hearings. The goals of each system are different. The juvenile court system is focused on rehabilitation of the youth. Punishments and fines in the adult court system are used to deter future crimes. In most cases, a juvenile cannot be incarcerated past the age of 21. Adults, however, are subject to much longer sentences. In cases involving serious crimes committed by a juvenile, the prosecution can request the case be moved to the adult court system through a “bind over hearing.”
What is the difference between probation and parole?
Probation, known as “community control” in California, is an option available to Judges during sentencing. Probation is often times used in cases involving misdemeanors or first time, non-violent offenders in lieu of sending everyone to jail. The Defendant is subjected to a variety of conditions, including drug testing, restitution payments, fines, court costs, community service, counseling, and substance abuse treatment. The Defendant must refrain from criminal activity as well. Failure to abide by the terms of probation may result in jail time, a longer term of probation, or additional conditions of probation for the Defendant. Once probation is successfully completed, any suspended sentence is dismissed and the case is terminated. Parole, or post release control in California, takes effect once a Defendant is released from prison. During this period of supervision, the Defendant must adhere to conditions similar to those of probation. Failure to follow these conditions may result in a trip back to prison. As with probation, once the terms of post release control are successfully completed, the case is terminated.
What is the difference between a “bench trial” and a jury trial?
During a “bench trial”, a judge hears all of the evidence and makes a decision regarding guilt/innocence and punishment. Bench trials are typically less formal and take less time than a jury trial. Bench trials are favorable under certain conditions. For example, a case involving specific legal issues may not make much sense to a jury whereas a Judge can understand the importance of the legal issues. Cases involving sensitive information and fact scenarios may not be appropriate for a jury. A jury consists of randomly selected “peers” who hear all the evidence and make a ruling regarding guilt or innocence. Juries are comprised of twelve individuals, plus two alternates, in felony cases and eight individuals, plus one alternate, in misdemeanor cases. Depending on the case, a jury may be more sympathetic than a Judge who is overwhelmed with cases. Since all jurors must agree to the decision, it is possible to obtain a not guilty or hung jury verdict so long as one juror is swayed in favor of the Defendant. Jury convictions must be unanimous.
What happens after a person is arrested?
While every situation may have differences, generally a person who has been arrested is brought to the police station where he/she is “booked”. This means the law enforcement agency will take personal, historical and biographical information. Law enforcement uses this information to determine if the individual has any warrants or a criminal history to aid in the evaluation of whether or not he/she can be released from custody or if the payment of a bail/bond is required.
Depending upon the jurisdiction, if the authorities intend to detain an individual, the accused may have a right to have their detention reviewed by a judicial official.
Generally, the police will file a criminal complaint with the DA’s Office and the individual will be required to appear in court. During the arrest procedure, officers may also seize property, records, and/or additional materials as evidence.
To ensure your rights are protected and to get the best understanding of the charges against you, contact our law firm for a free evaluation of your case.
Should I hire a lawyer before posting bail?
After being detained, the accused may be given the option to post bail as a promise to appear for a court date rather than remain in jail until the first hearing. The reality is that the bail amount could be raised, lowered, or revoked at the arraignment.
Consulting with an attorney from our Sacramento law office will allow them to review the current facts of your case and give you legal advice on the best strategy regarding your bail. This could potentially save you thousands in bail bonds fees.
If your bail is initially set at $100,000, a bail bonds agency will charge you or your loved ones $10,000 to post the bail for you. Should your lawyer successfully get your bail reduced or get your criminal case dismissed at the arraignment, the initial bond fee is not returned.
If you or a loved one is facing criminal charges and have questions about your bail options, please call our experienced criminal defense law firm for a free evaluation of your case today.
What is an arraignment?
An arraignment hearing is usually the first step in the criminal procedure that takes place in a courtroom before a judge or magistrate. The Arraignment Hearing protects your right guaranteed by the Sixth Amendment to the United States Constitution
. Specifically, the right “to be informed of the nature and cause of the accusation”.
You can expect the following at an arraignment hearing:
- A reading of the charges against you
- You generally enter a plea (guilty, not guilty, or no contest)
- The court will determine if you are eligible for bail and/or release. This may be held over for a formal bail hearing
- A future court date will be set (usually for a status conference)
Hiring an attorney that is experienced in criminal law to represent you at your arraignment is the best way to protect your rights. When facing criminal charges, having a dedicated defense team to provide you with legal advice, rather than a public defender who can often be overwhelmed with other cases, is your best choice. Contact Mike and Dan at the Abrate and Olsen Law Group for a free case evaluation today.
Do I need to hire an attorney if I plan on pleading guilty?
ALWAYS seek the advice of an attorney. Experienced criminal defense attorneys, including those at Abrate & Olsen, understand the law and will advocate for your best interests. Attorneys familiar with the legal system have the best chance of obtaining a not guilty verdict, securing a favorable plea bargain, or managing an outright dismissal of all charges. If convicted, an attorney can effectively mitigate on your behalf in order to secure the best possible sentencing scenario. Due to the numerous rules and intricacies of the court system, it is wise to hire an attorney in lieu of handling the case on your own. Beware of any attorney who makes promises or guarantees regarding your case. There are very few guarantees when it comes to the criminal justice system!
If you or a loved one is facing criminal charges, please contact our experienced criminal defense law firm for a free evaluation of your case before entering any plea for your case.
Can I be charged with a DUI after one drink?
Being charged with drunk driving
is not dependent on the number of drinks you have consumed or your tolerance to alcohol. A DUI is based on your blood alcohol content (BAC). In California, a driver over the age of 21, registering a BAC of 0.08% and higher is considered impaired and can be charged with a DUI. Drivers under the age of 21 can be charged with a DUI with a BAC of 0.01% or higher. Any driver operating a vehicle requiring a commercial driver’s license can be charged with a BAC of 0.04% and higher.
Our experienced DUI attorneys have successfully defended many client’s rights in criminal court and for the additional DMV Hearing. Contact the Abrate & Olsen Law Group today for a free evaluation of your DUI case today.
What should I do if I have a warrant?
In California, there are three types of warrants that may be issued against you, an arrest warrant, search warrant, and bench warrant. Understanding how each warrant can affect you is vital to protecting your rights. If you have a warrant, contact our criminal defense lawyers to review your situation and develop a defense strategy for your case.