California Criminal Defense FAQ
If you’re facing criminal charges, you’re likely worried about going to jail, keeping your job, seeing your children, and maintaining your quality of life. It’s normal to worry about your rights, freedoms, and future if you are caught in this situation. If you are being investigated or have been arrested or charged with a crime, you will naturally have many questions. Below are some frequently asked California criminal defense questions.
To discuss the specific facts of your case and learn more about how attorney Elliot Silver will help you and your family, contact Silver Law Firm today for a free consultation. Call today at (510) 995-0000.
Do the police need a warrant to arrest me?
Typically, police need a warrant to make an arrest. However, according to California Vehicle Code 40300.5 and Penal Code Section 836, police can make an arrest without a warrant. Specifically, an arrest without a warrant is permitted: (1) when an offense is committed in the presence of law enforcement, or (2) if the police officer has probable cause to believe the person committed a felony regardless of whether it took place in the officer’s presence.
What are my Miranda rights?
If law enforcement wants to ask you questions while you are in custody, they first must inform you of your Miranda rights. Miranda rights include the right to remain silent and the admonition that any statements you make will be used against you in your case, the right to have an attorney present during police questioning, and the right to have an attorney appointed if you cannot afford one. If the police take you into custody and conduct an interrogation but fail to advise you of your Miranda rights, the statements you provide to the officers are inadmissible as evidence against you in court, and should be thrown out.
What rights do I have after an arrest?
After you have been arrested, you have the right to remain silent and the right to an attorney. If you are pressured to talk to the police and give them information without your attorney present, your rights after an arrest are being violated. You can and should exercise your right to remain silent by asserting your Fifth Amendment right against self-incrimination. One of the costliest mistakes you can make is providing statements to police before consulting with an attorney.
Anything that you say to law enforcement can be used against you. Some of the most damaging evidence in criminal cases are the accused’s own statements. It is generally in your best interest to decline to answer any substantive questions and immediately seek legal counsel. Simply tell the police that you will not answer any questions until you can talk to your lawyer.
What is the difference between a felony and a misdemeanor charge in California?
A misdemeanor in California is a crime for which the maximum sentence is up to one year in county jail. Depending on the severity of the crime, those accused of one of these offenses could have to pay a fine of up to $1,000 or more. Examples of misdemeanors include prostitution charges, public intoxication, and petty theft.
Felonies are more serious and carry with them much stricter penalties. If you commit a felony – such as murder – in California, you face up to life in prison, hefty fines, and a tarnished reputation that will follow you around forever.
What is California’s Three Strikes law?
California’s Three Strikes sentencing law was enacted in 1994 and significantly amended in 2012. The law is intended to enhance sentences for repeat violent felony offenders. Under the current version of the law, defendants convicted of a serious and violent felony who have two or more prior strikes can be sentenced to 25 years to life. Increased penalties are also assessed for people who are convicted of a second offense under this law, even if they have not yet accrued three strikes.
What is an arraignment?
An arraignment is your first appearance in court after being charged with a crime. At the arraignment, you will be informed of the charges against you. You are required to be present at your arraignment. However, according to California Penal Code 977, your attorney can appear for you at your arraignment if you are accused of a misdemeanor unless it is domestic violence or driving under the influence, and the court has ordered you to be present.
Even if you feel overwhelmed by the charges and the court process, be careful not to say something you will regret down the line. Talk to your attorney and prepare for you arraignment – an Oakland criminal defense lawyer will ensure that this initial hearing goes smoothly.
What is bail?
Bail is money that is deposited with the court that secures your release from jail. The purpose of bail is to assure that the accused will be present for future court appearances and hearings. If you do not have all of the money at hand, you can use a bail bond company. If you use a bail bond company, the bail bondsperson will post the money, and then you pay a non-refundable fee of up to 10% of the bail amount. This is called a premium.
How much is bail going to be?
Each county in California has its own bail schedule, which provides an amount for each type of offense. Once you are booked, the jail will set scheduled bail for you and you can bail out right away. However, you should speak with Elliot Silver prior to posting bail because there is a possibility that bail can go up or down at the first appearance in court.
Judges may adjust bail. Bail amounts vary depending on the severity of the crime, the person’s criminal record, and the county in which the case is pending. If your bail is set too high, your criminal defense attorney will set a bail hearing and argue to get your bail reduced or waived altogether by releasing you on your own recognizance. This is called an “O.R.” At the bail hearing, the judge will consider two main elements: 1) your ties to the community and likelihood of return to court when required, and 2) the risk to public safety by allowing you to remain out of jail pending trial.
If a bail hearing is set, make sure you are communicating as frequently as possible with your attorney so they can get all the information and evidence they need to prove you are responsible enough to be considered for a bail reduction or an O.R.
Can I be released without bail?
In lieu of posting bail, you can request what is known as an O.R. release (also referred to as a release on your own recognizance) which is simply a promise that you will appear for future court proceedings. A judge will consider factors such as prior criminal history and severity of the crime in deciding whether to grant an O.R. release in addition to setting conditions for your release. You can be granted an O.R. release as long as your release would not compromise public safety, and you will appear at future court hearings.
What penalties am I facing if I’m convicted?
The penalties associated with a conviction vary significantly depending on the specific crime, your criminal record, and the mitigating or aggravating circumstances of your case. Misdemeanor offenses such as some traffic offenses and shoplifting are punishable by up to 364 days or less in county jail, and fines of up to $1,000. The penalties for felony offenses such as murder and rape charges are much more serious. If you’re convicted of a felony in California, you risk incarceration and large monetary fines. There are certain extremely serious felonies that are punishable by death, such as capital murder.
Should I accept a plea bargain?
A plea bargain is an agreement in which the defendant agrees to plead guilty or no contest in exchange for a lesser charge or more lenient sentence. Plea agreements are offered by prosecutors to resolve cases efficiently. A good plea agreement takes away the risk of going to trial and probably ending up with a harsher sentence if you lose. Only a seasoned and skilled criminal defense attorney will know when your deal is acceptable. It takes experience to know when you are at rock bottom and where the rubber meets the road. Any lawyer can show up and plead you to a stock deal, but it takes a tenacious advocate like Elliot Silver to get you that really good deal. Whether to accept a plea bargain depends on the specific circumstances of your case. Through careful deliberation and sound counsel, you can determine whether a plea agreement would serve your best interests. Your attorney will work to negotiate the most favorable terms with the prosecutor.
I have been charged with a crime. Do I need a criminal defense attorney?
The California criminal justice system can be a daunting place for anyone. If you have been arrested, charged with a crime, or are under criminal investigation, hiring an experienced criminal defense attorney as soon as possible is the most important thing you can do to protect yourself. A California criminal defense lawyer can speak to the police and prosecutors on your behalf, evaluate the evidence against you, develop a comprehensive defense strategy that serves your best interests, and fight to obtain the best outcome for your case.
What kinds of criminal cases does your firm handle?
California criminal defense attorney Elliot Silver cares about his clients and is dedicated to protecting their rights and freedoms. He has successfully defended individuals facing misdemeanor and felony charges throughout the Bay Area, and has more than 22 years of legal experience handing the following types of cases:
How do I choose a California criminal defense attorney that is right for me?
Finding a criminal defense lawyer who is right for you is absolutely critical while facing the possibility of fighting criminal charges. When deciding who you should hire to represent you in a criminal matter, you should look for an attorney who has extensive experience handling cases like yours, a proven track record of successful results for their clients, and someone who will devote their time and energy to making sure that your life stays on track.
Silver Law Firm prides itself on providing aggressive, knowledgeable, and dedicated legal representation to its clients. Contact attorney Elliot Silver today at (510) 995-0000 to discuss your defense options.