Monday, December 3, 2012

Interesting Information about protecting yourself legally, YMMV | The Law Office of Drew K. Baumchen, LLC

Information and Frequently Asked Questions About

Criminal Cases from a Former Deputy District Attorney

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Common Questions (FAQ's):

What to Do If You Have Been Contacted By the Police or Think You are Being Investigated

If you have been approached or questioned by a police officer, the first thing to ask yourself is: why is this law-enforcement person talking to me? The sad reality today is that, in most instances, when a police officer approaches you or questions you, he is not looking to help you or be your friend. The police officer is there because you have done something that has aroused their attention and they think that you may be committing or have already committed an offense or crime. So, the best thing you can do to help yourself and try to stay out of trouble is REFUSE TO TALK TO THE POLICE OFFICER OR INVESTIGATOR. Do not answer any questions or allow them to search you or "pat you down" in any way.

We've all heard of "The Right to Remain Silent" and that "anything you say can and will be used against you in court." Well, believe it or not, it's true: If you decide to speak to a police officer or investigator without an attorney present and end up getting charged with a crime or offense, you will probably hear them testify about what you said to them. Even worse, your statements can be taken out of context or they may even put words in your mouth. You can rest assured, however, that a police officer is almost never allowed to say in court that the defendant exercised the right to remain silent. If you want to help the police officer or investigator investigate you by talking to them, that's your choice. I, however, suggest that you tell them that you want to remain silent and talk to an attorney. If the officer persists, don't give in--tell them you are not going to speak to them without an attorney present. And then give us a call as soon as possible.

What Happens After You've Been Arrested or Cited

If you were arrested for a criminal charge and are reading this information online, then you have probably posted bail or security to get out or have been released either conditionally or on your own recognizance ("recogged" or "ROR'd"). (NOTE: if you are visiting my site for a friend or family member who is in jail, please contact my office immediately so that I can help try to secure their release as soon as possible.) If the police officer or other government agent gave you a "ticket" instead of arresting you then you were issued a citation (or cited) to appear in court. In either case, you should have received a date, time, and place for your court appearance.

Whether you were given a citation or were arrested and got out of jail before seeing a judge, your next court appearance is usually called an arraignment. Sometimes, an arraignment can be as soon as the morning of the next day. At the arraignment, the judge will read the charges against you and advise you of your trial rights. The judge may also address your release conditions (such as whether you can leave the state, have any contact with the alleged victim in the charge, use or possess alcohol, return to your home, etc.). You will be given the opportunity to apply for a public defender, if you wish (click here for more information about public defenders). Sometimes the court will enter a "Not Guilty" plea on your behalf as a matter of procedure. This is normal. In other courts you will not be asked to plead guilty or not guilty until much later in the case. It is very important NOT to plead "Not Guilty" at your arraignment unless the judge asks you to--doing so will usually just annoy or anger the judge. I also suggest that you do not plead "Guilty" or "No Contest" at your arraignment without first speaking with an experienced criminal defense attorney. If you plead "Guilty" or "No Contest" at your arraignment, you may be giving up your right to fight your case forever.

If you were cited into court, the District Attorney or prosecutor will sometimes ask that you report to the jail for a "book and release." This means that you will have to go to the jail after court (or sometimes within 48-72 hours of your arraignment) to have your fingerprints and mugshot taken. You will not be arrested or taken into custody on a "book and release."

After your arraignment, you will be given another court date, normally about three to five weeks out (except in most felony cases. For more information about felony cases, scroll down). Depending on the court and type of case, this next date will be called a Pre-Trial Conference, Entry of Plea, 35-day Call, or just Call. Whatever the name is, this next appearance is a check-in or status conference on your case. In some courts, it may be scheduled just a day or two before your first trial date. In others, you may not even have a trial scheduled yet. No matter what, this is the latest point in your case by which you should have contacted an attorney. If you originally thought you could "go it alone" without an attorney, hopefully you have changed your mind by now or are at least willing to consult with an experienced criminal defense lawyer before going any further.

Special Information for Felony Cases

There are many special legal and procedural rules for felony cases and not enough room to explain them all here. One basic procedure I will discuss, however, is the grand jury. A grand jury is a group of seven jurors (occasionally less) that hold a secret proceeding where they review the evidence in the case that is presented by the District Attorney. When a person is charged with a felony, the case is usually presented to a grand jury either before or after the first arraignment. The grand jury does not decide whether the defendant is guilty or not guilty. The role of the grand jury is to determine whether there is enough evidence in the case to even proceed with the charges (if so, the grand jury issues what is called an "indictment"). Historically, the grand jury was used as a safeguard to prevent prosecutors from filing felony charges that were frivolous or politically-motivated. Unfortunately, today the grand jury is more of just a routine step in the process than an actual procedural safeguard. It is very unusual for a grand jury to not issue an indictment on a case that the District Attorney has presented. Also, because the grand jury is sworn to secrecy and its members are not allowed to discuss the cases or proceedings, there are few ways to be sure that the prosecutors are presenting the evidence fairly.

When the grand jury meets before the defendant's arraignment, they usually issue what is called a "secret indictment." A secret indictment remains in a hidden court file and does not become a public record until the defendant is arrested or otherwise appears in court on the charge(s). When a grand jury issues a secret indictment, they also usually issue an arrest warrant for the defendant. Unfortunately, this process usually means that the defendant is not aware of the charge(s) until it's too late and often prevents them from turning themselves in or voluntarily appearing in court on the charge. An experienced criminal defense attorney can sometimes create an open line of communication with the District Attorney and may be able to prevent the defendant from being arrested in this manner by making arrangements for the defendant to turn themselves into the police or voluntarily appear in court.

If you have been charged or arrested for a felony, you should contact an experienced criminal defense attorney to discuss your case. The sooner you get an attorney on your side, the more that attorney can do to help you with your case.

When You Will be Able to Tell the Judge or Jury Your Side

When someone first appears in court on a criminal charge, they often think "if I just tell the judge what happened, he or she will understand and will..." (dismiss the case, give you a warning, etc.). Unfortunately, this is not how things usually work. The arraignment or first appearance on a case is generally not the appropriate time to try and explain your side of things. In fact, trying to do so will probabjust make the judge annoyed or angry. The reality is, you will probably not have the opportunity to explain what happened in your case until your trial or if you decide to plead guilty to the charge(s). However, an experienced criminal defense lawyer will listen to your side of the case and can talk with you about how and when it will benefit you to explain your side of things in court, or if it will really even help your case to explain your side at all. Most important, an experienced criminal defense attorney knows how to effectively communicate for you with judges, jurors, and prosecutors and can help you put your best foot forward.

Will You Go to Jail if You are Convicted?

Whether you will go to jail or not if you are convicted is difficult to say and depends on a variety of factors. Some of these factors are: your previous criminal record (if any), the nature and type of offense, whether you have a job and what sort of work you do, whether you support a family, whether you take a plea deal or go to trial, and many others. The criminal justice system provides many alternatives to jail for those who qualify, such as: electronic monitoring or electronic home detention ("EHD" or the "ankle bracelet"), work-release programs, or community service. An experienced criminal defense attorney can discuss these options with you and negotiate with the prosecutor or District Attorney to try to resolve your case in a way that minimizes the jail time you may have to serve or avoids your having to serve any jail time at all.

Do You Really Need a Criminal Defense Lawyer?

There's an old saying that goes something like: "A person who acts as their own lawyer has a fool for a client." Under our constitution, you have an absolute right to represent yourself without a lawyer in any criminal case. That doesn't mean it's a very good idea, though. Even the most simple criminal cases involve complex rules and procedures that are confusing and overwhelming to most people. Even worse, most judges are not going to "give you a break" if you decide to represent yourself--they will expect you to know the laws and rules that apply to your case and won't often give you a chance to figure it out or have a "do-over." If you tried to proceed with representing yourself in court already, the judge probably "suggested" that you speak with an attorney and gave you a stern lecture about what a lawyer can do to help you. Hopefully, you listened to what the judge told you because it's true. It is never advisable to try to handle a criminal case on your own without at least consulting an experienced criminal defense lawyer.

How to Choose a Lawyer

Choosing the right lawyer for your case can be a challenge. In my opinion, the best lawyer for you is: 1) a lawyer who you feel comfortable is competent to handle your type of case; 2) a lawyer who you feel you can trust and truly has your best interests at heart; 3) a lawyer that you can understand and communicate clearly with; and 4) a lawyer who is honest with you about your legal fees and costs for your defense.

Almost all lawyers advertise in some fashion. Flip open the yellow pages and you will find lots of fancy, full-page ads for criminal defense and DUI lawyers. You should never choose a lawyer by who has the biggest or brightest ad in the phone book because most ads tell you very little about the lawyer's qualifications or experience. The best way to find a criminal defense lawyer is to ask your friends or family if they can refer you to a lawyer that they know or have heard of. If you know someone who is a police officer or works in law-enforcement, call them and ask who they would recommend. Even better, if you have an attorney for family or business matters, or just a friend who a lawyer or judge, ask them for a referral. Even though there are a lot of lawyers in Portland and around the state, it is still a relatively small legal community and most lawyers can refer you to a reputable attorney for your specific type of case. Lawyers and judges are generally the best evaluators of the qualifications and experience of other lawyers.

Also, you shouldn't be afraid to meet or consult with several lawyers before making a decision on who to hire. By meeting with more than one attorney, you will be able to compare and contrast your experience during the consultation and will probably have a better idea of which lawyer is going to be best for you and your case. Most criminal defense and DUI lawyers don't charge for an initial consultation, so you don't have much to lose by shopping around. To contact The Law Office of Drew K. Baumchen for a free consultation for your criminal case, please click here.*

How Much Will a Criminal Defense Lawyer Cost?

Like most things in life, when it comes to lawyers, you usually will end up paying for what you get. To be perfectly honest with you, good lawyers are certainly not cheap. However, even minor criminal cases can be very serious and a conviction can have dramatic repercussions for your life, your job, and your family. Trying to go "low-budget" with a criminal defense attorney may end up in "low-budget" results.

Every case is different, so it's tough to say how much your legal fees would be for your case or even for your type of case. At The Law Office of Drew K. Baumchen, LLC, I try to work with my clients to find cost-effective solutions to their cases, whether it's litigating the case and going to trial, or aggressively negotiating with the prosecutor or District Attorney to work toward a settlement or plea agreement. Depending on your financial circumstances, an initial retainer for my services can be as little as $1,000. I generally take criminal cases on a flat-fee or fee-per-service basis. When I am deciding how much my fee will be for a case or for a particular service, I try to estimate how many hours of work the case or service will require. Then, I calculate my fees by using the estimated number of hours and the type of case and work involved. For most cases, my minimum hourly fee is $200-250 per hour, again depending on the type of case and work involved. I feel that these rates are fair and reasonable because of my experience, my level of personal service to my clients, and rates that other lawyers with similar skill and experience charge. Additionally, I try to make it a point not to "nickel and dime" my clients for the little things, like quick phone calls, emails, or photocopies. I believe that this adds value to the fees my clients pay and further justifies my minimum hourly rates.

To find out how much it will cost to hire experienced criminal defense lawyer Drew K. Baumchen for your specific case, please contact my office to set up a free initial consultation.*

What Happens if You Can't Afford a Lawyer

If you can't afford a lawyer, you may qualify to have a public defender represent you in your criminal case. While many public defenders are excellent lawyers, even the best can sometimes be overworked or defending too many cases to present the very best defense in each case. When you hire a lawyer to represent you in a criminal case, one of the things that you are paying for is a higher level of personal service. Most privately retained criminal defense attorneys will spend more time with you and will be able to greater address your specific concerns and individual circumstances.

Another major difference between a privately retained attorney and a public defender is that you can not get a public defender until you have actually been charged with a crime and appeared in court. Often, this is well past the point where a criminal defense attorney can have the most effective impact on the outcome of your case. An experienced criminal defense lawyer can provide early intervention in a criminal case and assist you before any charges are filed, and sometimes they can help prevent any charges from being filed at all.

A criminal conviction can have serious consequences for your life, your job, and your family. If you have been investigated, charged, or arrested for a criminal offense and you think you can't afford a criminal defense lawyer, think about your future and contact The Law Office of Drew K. Baumchen, LLC today.

Glossary of Legal Terms

Consult or Consultation: a meeting between a prospective lawyer and potential client in which the client can explain their legal issue and the facts of their case so the lawyer can evaluate the case, discuss the client's legal position, and talk about the cost to hire the lawyer.

Criminal Defense Lawyer (or Criminal Defense Attorney): an attorney who specializes in criminal cases and who has specialized knowledge of criminal laws and procedures. A criminal defense lawyer also usually has significant courtroom and trial experience.

Criminal Charge (or Offense): an allegation by the government that a person has violated a law that prohibits certain conduct as being a crime. Generally, criminal charges are more serious than non-criminal charges because a criminal charge may result in the defendant going to jail or prison.

District Attorney (or DA): in Oregon, the District Attorney is the government lawyer who prosecutes most criminal cases. In most counties, there are Deputy District Attorneys who work for the District Attorney in the District Attorney's Office. Often, the term District Attorney or "DA" is used to refer to the prosecutor or Deputy District Attorney assigned to a particular case.

Felony: a felony is a serious criminal charge that could result in the defendant going to jail, prison, or worse if they are convicted. A felony is generally defined as any offense for which the maximum penalty can be more than one year in jail.

Grand Jury: a grand jury is a group of seven citizens (sometimes less) who are asked to review felony charges to determine whether there is enough evidence to proceed with the case. Grand juries meet privately and are sworn to secrecy about the cases that they review and the evidence that they hear.

Guilty Plea: an admission that the defendant committed a specific crime or offense that they are charged with. Usually, a guilty plea also involves admitting to the particular facts of the crime or offense.

Misdemeanor: a misdemeanor is a lower-level offense that can still be very serious. Misdemeanors are commonly defined as any offense for which the maximum penalty is no more than one year in jail.

No Contest Plea: a plea of no contest is similar to a guilty plea except that the defendant does not have to admit to the particular conduct that constitutes the offense. Either way, the defendant ends up convicted of the offense. While a defendant has an absolute right to plead guilty to any charge at any time, a court or judge is not required to accept a plea of no contest in a criminal case.

Not Guilty: a finding by a judge or jury that there is not enough evidence to convict a defendant of a particular charge. Not guilty is different from innocent because not guilty simply means that the evidence in the case was legally insufficient to confirm the defendant's guilt.

Warrant: a warrant is a judge's command, usually either to arrest a person (arrest warrant) or to search a particular place or thing (search warrant). Arrest warrants are frequently entered into a police database so that police officers will know if a person they are speaking to has a warrant out for their arrest (in which case the police officer will arrest them). A search warrant is different in that search warrants are generally executed shortly after they are issued by a judge.

* The Law Office of Drew K. Baumchen, LLC offers free initial consultations to potential clients who have been arrested or charged with a criminal offense. I also generally provide free initial consultations to potential clients who are or reasonably believe they are being investigated by the police or other government agency for a crime or other offense. I occasionally charge consultation fees in criminal cases where a potential client has already been convicted of an offense, or is seeking relief from a judgment or court order.

... More at the following link. [This is not legal advice, blah blah blah, I just found some of the details interesting, Cheers, Connie]

The Law Office of Drew K. Baumchen, LLC | Information about criminal cases and defense

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Connie O'Dell - DV, EDA, jobseeking, life,whatever