Criminal Law Frequently Asked Questions
Our firm has extensive experience defending the rights of those arrested and accused of criminal offenses. We handle all types of criminal cases, including minor infractions and misdemeanors to the most serious of felony indictments, such as drunk driving, drug possession, narcotics, theft and grand larceny, white collar fraud, embezzlement, sex offenses, arson, and conspiracy.
For most people, their personal experience with criminal law is a traffic ticket or citation of some sort. Often, as a society, our view of the law, law enforcement, and crime is based on perceptions from Hollywood in the form of popular television shows or movies. It is unfortunate that such portrayals are often incorrect. The reality is that the study of criminal law can take months to fully understand. Criminal law and constitutional law often must be view together in order to fully understand the impact of some laws. The format set out below is a series of frequently asked questions and answers. It is intended to give a general overview and better understanding of certain areas of the questions asked. It is not legal advice or legal opinion. The answers below are not intended to give advice about your specific case, seek advice from a knowledgeable attorney. The use of the word police officer includes any licensed peace officer such as sheriff, constable or deputy.
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Can the police search my house or car? The general rule is that your house or car can be searched if you are placed under arrest; or if the police officer has a search warrant issued by a judge; or if there is not a "legitimate expectation of privacy" regarding the thing or place being searched such as your trash on the curb. The police officer don’t have to warn you that you have the right to refuse a search of your premises, so if you give them permission to search something, even without a search warrant, anything they find can be used against you. Any time that you are asked by a police officer if he can search your house or car you should respectfully refuse. The same goes for a private security guard, at a department store for instance. He is not subject to the same search restrictions as is a police officer. Anything discovered during a search by a security guard could be turned over to the police and used against you, regardless if the guard had a real reason to stop you in the first place. Search-and-seizure/Fourth Amendment law is a complex and hotly debated area of law. For questions involving searches, seizures or other evidence-gathering methods consult with an experienced criminal lawyer. [ Top] |
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Can a police officer arrest me without a warrant? In most cases where there is probable cause for arrest you can be arrested without a warrant. There are certain exceptions to this rule. For example in the case of a misdemeanor not committed in the presence of a police officer and not involving family violence or violation of a protective order (and other exceptions) the officer may not have a lawful right to arrest you. That does not mean that you can resist or flee arrest if it is not lawful. [ Top] |
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What if the police officer did not read my Miranda Rights when he arrested me? We all are familiar with the Miranda warning if we watch a minimum amount of cop shows or movies. We all know the police officer must read from his card that you have the right to remain silent; anything you say can be used and will be used against you, etc. The failure of the police officer to read the warning to you does not invalidate an arrest, just the statements you make after you are arrested make be suppressed. Of course, most statements are made before someone is arrested and the Miranda Rights do not apply. In a 1966 case the Supreme Court found that the confession of Ernesto Miranda was inadmissible in court because the defendant was not informed of his right to counsel or his right against self-incrimination. In an effort to effectively inform an arrested person of those rights, the Miranda Warning was developed. [ Top] |
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What are my rights when I am arrested? You have the right to remain silent. You have the right to have an attorney present any time police or law enforcement that want to speak with you, and the right to have an attorney represent you at trial. You have the right to bail except in certain cases such as murder. You have the right to have your felony case considered by a grand jury. You have the right to confront your accusers at the trial, unless the victim is a young child where some exceptions are made. You have the right to trial by jury. If you are convicted, you have the right to file a writ of habeas corpus. [ Top] |
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Should I tell my side of the story to the police officer when I am arrested? Often you are arrested on a warrant where the police officer is not going to let you go even if he believes your story. If you are arrested without a warrant the officer is trying to make his case and will use any statements against you. In either case the downside is that you run the risk of making statements that may be misconstrued or misquoted by the officer that may be used against you in court. The same thing applies when you are before the magistrate. Keep quiet until you speak with a lawyer! [ Top] |
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What if the police officer says that I should
confess and he will speak with the district attorney and ask them to go
easier on me?
Often the opposite is what happens. You make a full confession and the district attorney knows that you do not have a case that can be tried and is less likely to make a reasonable plea bargain in your case. You should never speak to any time police or law enforcement without an attorney present, whether innocent or not. [ Top] |
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Should I hire an attorney if I am arrested? You the right to represent yourself in a criminal case, but it is a bad
idea even for traffic tickets in most jurisdictions. Remember the old
quote, he that represents himself has a fool for a client. [ Top] |
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What if I cannot afford a lawyer? In all cases except Class C misdemeanor cases the court will appoint an attorney for you if you can not afford one. The court must appoint an attorney that has the ability to handle your case. You should be aware that some judges might not appoint an attorney for you if you got of on bond other than a PR or personal bond. Some judges will not give you a PR or personal bond unless you hire an attorney, so you may stay in jail for weeks before the court appoints someone to represent you.
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What happens when someone is arrested? For an adult, generally the arresting officer reads the defendant’s his Miranda Rights (though many defendants say that no one bothered to inform them while the police report states that the officer did read the warning). The officer then transports him to a magistrate to determine if there is probable cause to hold you. Regardless of the circumstances very few people are released at this stage. In Bexar County he will generally not have his attorney present when magistrated. In Bexar County the wait for the magistrate at 401 S. Frio could be anywhere from two to three hours or more. You will be able to make a phone call at this time. After he is magistrated, he will remain in the holding cell until he is transported to the Bexar County Adult Detention Facility at 200 N. Comal Street. It can take several hours to get booked into the jail (finger printed, photographed and changed into jail clothes). He will not be released until you make bond or go to court. On felony cases the district attorney’s office will take the defendant’s case to grand jury for a "true bill" of indictment. On misdemeanor cases the district attorney (or county attorney depending on the county) will file a sworn complaint with the court. If the defendant was arrested for violating his probation or parole he will be held without bond. He can be held for up to twenty days without a hearing or bond in the case of a motion to revoke probation. In such cases hire an attorney as soon as possible. The defendant may be released on a personal bond, cash bond, ten percent cash bond or bond posted by a bail bondsman. When the defendant goes before the magistrate, bond is generally set at that time as well as the reading of rights. Generally at the jail the Pretrial Services will interview the defendant for a personal bond. Often, this can take some time, but is better than paying a bail bondsman ten percent (10%) or more of bond. Often the personal bond is denied for a variety of reasons. If the bond is low and the hour is late, pay a bail bondsman and get out. Or pay the whole amount of bond to the sheriff’s office (money order or cashier’s check). If the bond is high the bail bondsman will often work out a payment plan. Sounds good, except many defendants then cannot pay their attorney because the are paying their bondsman five or six thousand dollars. On a high bond wait in jail until an attorney can be hired. Often the attorney can get a personal bond or a ten percent (10%) cash bond from the court. On a ten percent (10%) cash bond the court refunds the bond when the case is over regardless of the outcome so long as the defendant shows up for his court dates. The attorney can sometimes get the prosecution to agree to a reduction in the bond and the court will generally approve that agreement. The attorney also can have hearing to get the bond reduced. [ Top] |
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How do you get someone out of jail? The defendant may be released on a personal bond, cash bond, ten percent cash bond or bond posted by a bail bondsman. When the defendant goes before the magistrate, bond is generally set at that time as well as the reading of rights. Generally at the jail the Pretrial Services will interview the defendant for a personal bond. Often, this can take some time, but is better than paying a bail bondsman ten percent (10%) or more of bond. Often the personal bond is denied for a variety of reasons. If the bond is low and the hour is late, pay a bail bondsman and get out. Or pay the whole amount of bond to the sheriff’s office (money order or cashier’s check). If the bond is high the bail bondsman will often work out a payment plan. Sounds good, except many defendants then cannot pay their attorney because the are paying their bondsman five or six thousand dollars. On a high bond wait in jail until an attorney can be hired. Often the attorney can get a personal bond or a ten percent (10%) cash bond from the court. On a ten percent (10%) cash bond the court refunds the bond when the case is over regardless of the outcome so long as the defendant shows up for his court dates. The attorney can sometimes get the prosecution to agree to a reduction in the bond and the court will generally approve that agreement. The attorney also can have hearing to get the bond reduced.
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What is a Bond? Bond is the monetary assurance to the court that the defendant will show up for his court date and trial. It is a constitutional right except in certain cases to have a reasonable bond set since the defendant is presumed innocent until proven guilty in a competent court of law. [ Top] |
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What if someone is being held without a bond? There are certain cases where the defendant can be held without bond such as murder, flight risk, motions to revoke probation or parole. The attorney will have to set the case for a hearing to get bond set. [ Top] |
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What is a plea bargain agreement?
It is an agreement between the prosecutor, defendant and his attorney as to punishment instead of trying the case. The court must approve it. The defendant may plea no contest or guilty. If the court rejects the plea, the defendant may withdraw the plea. No evidence may be later introduced to a jury that the defendant had pled guilty or no contest in the case. |
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The court instead of jail or prison time often gives probation. The defendant has to report weekly or monthly to a probation officer, perform community service hours, make restitution, pay fines and monthly reporting fees. If the defendant fails to live up to his end of the bargain, the court may revoke his probation. When the court revokes the probation it may put the defendant back on probation with addition conditions, send the defendant to a drug or alcohol treatment center or send the defendant to jail or prison. [ Top] |
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What is the difference between a felony and misdemeanor? The punishment range that is available to the courts is how you can tell. A traffic ticket is a class C misdemeanor, there is only a fine and there is no jail time. Crimes such as DWI 1st or 2nd, assault with bodily injury, or theft up to $1,500.00 are misdemeanor offenses. The punishment for Class B misdemeanor is up to $2,000.00 fine and six months in jail. The punishment for Class A misdemeanor is up to $4,000.00 fine and twelve months in jail. The lowest level felony is a State Jail Felony. The punishment ranges from six months in prison up to two years and the sentence is day for day, no parole and a ten thousand dollar fine. The next level is a third degree felony. Punishment ranges from two years to ten years in prison and a ten thousand dollar fine. The next level to follow is the second degree felony with punishment ranges from two years to twenty years in prison and a ten thousand dollar fine. The most serious level is the first degree felony with punishment ranges from five years to nintynine years in prison and a ten thousand dollar fine. Capital punishment is available for certain first degee felonies.[Top] |