An Overview of the Criminal Justice Process
Criminal Law FAQ
An Overview of Family Law
Family Law FAQ
An Overview Of The Criminal Justice Process
Most individuals never have any contact with the Criminal Justice System and when they do come in contact with the system, they learn that it is a strange and frightful experience, especially for those wrongfully accused of a crime. The process usually starts with an arrest and being taken into custody. The person is taken to the local jail, booked, and informed of the bail which will have to be posted to obtain a release prior to appearing in court for the first appearance, which is called an arraignment.
The bail set at the jail is the result of a bail schedule previously determined by the Superior Court for the County in which the alleged crime took place. If the person posts bail, or has bail posted by a bail bondsman, the person will be released and given a court date to appear in the Superior Court to be arraigned. If the person does not have the ability to post bail he/she will remain in custody until taken to court for the arraignment.
The arraignment must take place within two (2) court days after the arrest, meaning that weekends and court holidays are not counted in the two (2) day period. At the arraignment the person will be informed of the charges and will enter a plea of not guilty, guilty, or no contest (which is treated as guilty) to the charges. At the arraignment the custody status of the person will be decided by the judge and bail may be raised or lowered depending upon the circumstances of the case. The person could also be released on his or her own promise to return to court on the next scheduled court date, which is commonly known as an “O.R.” release.
If the charge is a misdemeanor, the court will set the matter for trial within no more than 45 days if the person is out of custody and 30 days if in-custody. The time can be expanded if the person agrees to a longer period of time to trial.
If the charge is a felony, the court will set a preliminary hearing (a mini-trial) to determined if there is “probable cause” to hold the person over to a trial. Unless otherwise agreed to by the person, the preliminary hearing must be conducted within ten (10) court days after the arraignment. If at the conclusion of the preliminary hearing the court determines that there is sufficient evidence to have the person held to answer to the charges in a trial, the court will set a trial date within sixty (60) days after the conclusion of the preliminary hearing. The time can be expanded if agreed to by the prosecution and the “defendant.”
The matter then proceeds to trial and will only be resolved by one of the following:
1. The matter is dismissed by the prosecution;
2. The defendant enters a plea; or
3. The matter is tried and the defendant is found guilty or innocent.
At trial the prosecution must prove the charges “beyond a reasonable doubt” and a conviction or acquittal requires all twelve (12) jurors to agree on each of the charges. If there is not an unanimous decision it is considered a “hung jury” and the prosecution can retry the defendant or dismiss the matter.
Criminal Law FAQ
Q. The police did not read me my “Miranda Rights” so will my case be dismissed?
A. Law enforcement is only required to inform you of your “Miranda Rights” when you are in “custody” and being questioned about the specific crime. If you are free to go, or you are told that you are free to end the questioning and leave (even if you do not believe this to be true) you are not in “custody” thus “Miranda Rights” are not required. Further, even if your “Miranda Rights” are violated that may not be sufficient to dismiss your case but rather only enough to not allow your statements to be used. However, if there is other evidence which is sufficient the matter will proceed toward trial.
Q. If the “victim” does not want to prosecute the matter will the case be dismissed?
A. Generally, No. The case is prosecuted in the name of the People of the State of California, therefore, the District Attorney controls whether the matter continues not the “victim.” The District Attorney can force the “victim” to testify and if the “victim” refuses the prior statements of the “victim” to law enforcement may get introduced at trial.
Q. If I am stopped by law enforcement while driving my car and I do not give them permission to search my car, and they do search my car, have my constitutional rights been violated and is this an illegal search?
A. Generally, No. Law enforcement needs probable cause to stop a vehicle, however, there is a lesser expectation of privacy in vehicles and searches that are properly related to the stop or arrest are permitted. Whether the search was proper is an issue for your attorney to examine.
Q. I was stopped for a broken brake light and arrested for Driving Under the Influence (DUI), can they do this?
A. The broken brake light is what gives the officer the ability to stop your vehicle. If after stopping the vehicle the officer detects the smell of alcohol or other objective facts that lead him or her to believe that you may be driving under the influence of alcohol you could be arrested for DUI. Generally, if the officer believes you are under the influence of alcohol you will be asked to perform a set of field sobriety tests (FST) or blow into a preliminary alcohol screening (PAS) devise to determine if there is probable cause for an arrest for DUI. If you fail the tests or your register a sufficient level on the PAS devise, you will be arrested for DUI.
Q. If arrested for DUI should I refuse to take a chemical test?
A. No. If you refuse to take one of the tests that are offered (Breath, Blood or Urine) you will lose your license for one (1) year regardless of your condition. It is advisable to always submit to the test and leave the validity of the results to your attorney.
Q. What is the difference between being charged with an infraction, misdemeanor or a felony?
A. The California Penal Code designates criminal actions as either infractions, misdemeanors, felonies,
or a hybrid which is a criminal act that can be charged as a misdemeanor or a felony (commonly referred to as wobblers). Traffic offense and some other acts are infractions, meaning that they can only be punished by a fine. Misdemeanors are considered more serious than infractions and can be punished by up to one year in the County Jail and a fine up to $1,000. Felonies are even more serious acts which can be punished by commitment to State Prison and fines up to $20,000. Wobblers are criminal acts where the Penal Code permits the act to be charged as either a felony
or a misdemeanor.
A person charged with a felony is entitled to a preliminary hearing to determine if there is probable cause to hold the person over for trial. A person charged with only an infraction or misdemeanor will not have a preliminary hearing and will proceed directly to trial.
Q. Why should I hire a private attorney, when I can get a public defender for free?
A. A public defender will be appointed to represent any person charged with a crime, where there is the potential of jail or prison time, if it is determined by the court that the person cannot afford (is indigent) to hire an attorney. Even if a public defender is appointed to represent to defendant, the defendant may still be required to reimburse the County for the cost of the public defender. Additionally, many public defenders carry a very large caseload representing numerous defendants at the same time. A private attorney usually has more time to handle your individual case, meet with you, and fully investigate and defend you against the charges you are facing.
An Overview of Family Law
The most common legal action coming under the heading of Family Law is the filing of a petition for the dissolution of marriage, commonly known as a divorce. The termination of marriage begins with the filing and serving on the other party, a summons and petition for dissolution of marriage. Unless the parties have reached an agreement on custody, visitation, and support issues to get an order in place one party must take action through the filing of an Order to Show Cause or Notice Motion, to have a court implement a custody, visitation schedule and support order.
Generally, when the divorce involves children, the court will refer the parties to mediation to attempt to develop a parenting plant relating to their minor children and thereafter have the parties return to court to determine if they have reached an agreement on custody and visitation. If the parties have reached an agreement, the court will adopt their agreement as the order of the court. The order will stay in place until, and if, there is a “change of circumstances” and one of the parties brings a motion before the court to modify the existing order.
If the parties cannot reach an agreement the court will set the matter for a trial, and after receiving testimony, the court will enter an order on custody and visitation matters. From this order the court will be able to determine support based upon the income of each of the parents and the amount of time that each parent spends with the children.
While the custody and visitation matters are proceeding, the parties will also need to divide up the community assets and debts. If the parties can agree on an “equal division” the court will adopt their agreement and make it the order. If the parties cannot agree upon an “equal division” then the court will be forced to set the matter for trial and make an order dividing the parties’ assets and debts after receiving testimony.
The termination of the marriage, returning the parties to the status of non-married persons, can also be accomplished at the time of trial on the issue of the division of the parties’ assets and debts.
Family Law FAQ
Q. Do I need a lawyer to get a divorce?
A. The simple answer is no. Any person can represent themselves and depending upon the complexity of the issues, may not ever need to consult an attorney. However, if there are significant custody and property issues, it may be in one’s best interest to be represented by an attorney.
Q. Can I keep my spouse from having custody and visitation with our children?
A. Generally speaking, the court will strive to provide each parent with ongoing quality time with their children. Thus, unless there are some very significant concerns that the children being with the particular parent would not be in the best interest of the children, each parent will have joint legal and physical custody of the children and be able to spend time with their children.
Q. I want to keep our house, will I be able to have it awarded to me in the divorce?
A. If the parties can agree to what is an “equal division” of their assets and debts, the court will generally confirm the parties’ agreement and make it an order of the court. However, if the parties can not agree, the court, through a trial, will equally divide the parties’ assets and debts. If one party desires to retain the home, and there is sufficient other assets that can be awarded to the other party, then it may be possible to retain the home. If not, the home will most likely be sold and the proceeds equally divided between the parties.
Q. My spouse had a retirement before and during our marriage, do I get one half of all of the retirement?
A. Retirement, as with other items obtained during marriage is generally considered a community property asset. However, the community property interest in a pre-existing retirement plan is only to the portion of the plan obtained during marriage. The rest is the separate property of the spouse who holds the retirement plan.
Q. What is separate property?
A. Generally speaking, separate property is all property acquired before marriage or property acquired during marriage by gift or inheritance.
Q. Can separate property become community property in character?
A. Community property can become separate property and separate property can become community property if the parties take the appropriate action with the intent to change the characterization of the property.
Q. Are there restrictions as to when I can file for dissolution of marriage?
A. Before a petition for dissolution of marriage can be filed you must have resided in the State of California for six months, and within the County in which you are filing for three months.
Q. How long does it take to become an unmarried person once the petition for dissolution of marriage is filed?
A. The earliest one can obtain a court order returning the person to the position of an unmarried person is six months from the date the other spouse is served with the petition for dissolution of marriage.