Criminal Defense FAQ (Criminal Defense Lawyers)


What rights do I have at the time of arrest?

You’ve heard it on television: You have the right to remain silent. You have a right to have an attorney. Anything you say will be used against you. These rights are triggered once you have been arrested, and not before. A police officer can ask you questions during an “investigation,” but must read you these rights if he wants to talk to you after you’ve been arrested. If you exercise your right to remain silent, a police officer can come back later and ask if you’d like to talk later. If you ask for an attorney, ALL questioning must stop until you have a chance to talk to an attorney. They cannot ask you any more questions. However, the questions that are asked when you are brought into the jail, or “booked,” are usually questions about your address and contact information. These questions are not incriminating, and the police can ask them.


Can my attorney appear in court for me so that I don’t have to miss any work?

Under California Penal Code section 977, a defendant may waive their personal appearance in court, and allow their attorney to represent them without their presence. For a misdemeanor crime, this permission can be verbal, and we ask our clients for this permission. We then let the judge know that we are appearing “with 977 authority.” In a domestic violence case, the defendant must be personally present for the arraignment (first appearance) and the sentencing (when the judge decides the punishment). This cannot be waived, although we can appear for you at other appearances, like trial setting and early disposition conferences. For any felony case, the 977 waiver must be in writing and executed in open court. Sometimes this is helpful, but often we advise our clients of the importance of being personally present at the court appearances. Talk to us about it, and we will develop the strategy with you.


When can a police officer conduct a search?

As long as you provide consent an officer can make a search. Or, the officer can make a search upon presentation of a search warrant or if he has probable cause to believe the search will find evidence of a crime. An officer can conduct random searches of the car, body and home upon probable cause. An officer can search your car in an emergency or for probable cause. Home searches are confined to the area the defendant is taken into custody. Body searches can occur at the time of arrest.


How can I get bail reduced?

Bail is set at the time of arraignment. It is determined by the seriousness of the defense. Bail is not mandatory. The judge has the right to refuse to issue bail. We can bring a motion to reduce bail during any proceeding in front of the court. The judge will look at factors such as family history, background, professional responsibilities, past criminal history, and circumstances surrounding the case.


Can I change attorneys after getting a public defender?

Once the public defender is appointed, the courts will rarely give you a different public defender. You are entitled to a free attorney, but not to the attorney of your choice. The courts almost always grant a motion to relieve the public defender and have us represent you on your case. The only times this would not happen would be if the trial date was too soon and the prosecutor objected. Many of our clients come to us after being unhappy with the representation of a public defender.

August 5, 2011
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