You’re driving home late at night and suddenly you start to swerve your car. Maybe you were swatting at a bee or mosquito that snuck in. Maybe you saw a pothole at the last minute. There’s dozens of reasons you might have to swerve.
Suddenly you see a squad car’s flashing lights in your rearview mirror and the cop is gaining on you. You properly turn on your directional signal and pull over to the curb. The officer asks for your license, registration, and proof of insurance. You comply and ask why you were pulled over. The officer may or may not tell you – he or she is not required to at this point.
Next the officer asks a series of questions. Where are you coming from? Have you had anything to drink? If you answer in the affirmative to that last question, you may be asked how much did you have to drink?
Is an officer required to recite your Miranda rights to you at that point?
You are not under arrest. The officer has stopped, or detained, you because of your erratic driving maneuver and the hour of night, he or she has reasonable suspicion you might be driving under the influence of alcohol or drugs, including prescription medicine. These are simply “field investigation” questions.
Now change the scenario. Let’s say you actually have been arrested – for DUI or any other crime. Whether the officer actually says the words, “You’re under arrest,” (they usually do but are not required to at that point), you have been handcuffed and put in the back of police car.
Surely the officer is required to give you the Miranda advisal now, right? I mean, that’s what they do on television. Trust me, half of what you see about the law (cops and lawyers) on TV or in movies is wrong!
No, the police are not required to “Mirandize” you just because you have been arrested. In fact, if they never ask you any questions about the crime (name, address, place or birth and other background information is okay), they NEVER have to “Mirandize” you.
But this time you are transported to a police station and taken to a desk or table somewhere and the police start asking you where you were coming from, who was with you, did you have anything to drink, where did you get the gun/drugs/stolen art/forged checks or whatever, in other words, questions about the crime. Now they have to read you the Miranda rights before asking any questions.
According to the U.S. Supreme Court, the police are not required to tell you the Miranda rights unless two things are occurring simultaneously: 1) you are under arrest, and 2) they are asking you any questions (other than the “booking information” mentioned above).
This can all be very confusing to the average person especially when you are angry, frightened, or confused after being arrested. It is why you need a criminal defense attorney at your side and should not answer any questions until you do.
I am an experienced criminal law attorney, available 24 hours a day, to guide you at times like this. Reach me at Rebeccaocainlaw.com or (619) 431-1076.
Part 2 - Misdemeanors
Yesterday you learned the steps for a felony are Arraignment, maybe a Bail Review, the Readiness Conference, a Preliminary Examination, another Readiness Conference, Arraignment on the Information, and possibly a Trial. The process for a misdemeanor is much shorter and generally quicker.
Just as with a felony, the first appearance in a misdemeanor case is the arraignment. There, the defendant will enter either a plea of guilty or not guilty. At times, relatively straight forward misdemeanors will resolve at arraignment. If not, a readiness conference and jury trial dates are set. If a plea agreement that is suitable to all parties cannot be reached at the readiness conference, the trial date is “confirmed.”
If you are charged with a misdemeanor or an infraction and are in custody, you have the right to go to trial within 30 days of arraignment or entry of a not-guilty plea. If you are out on bail or “OR” (own recognizance), the prosecutor has 45 days to bring you to trial. If the case goes to trial, the jury will render either a not guilty or a guilty verdict. If a guilty verdict is reached, then a sentencing will be set.
The court process can be confusing and overwhelming. Especially when so much is at stake. As much as it would be nice to know the exact timeline of things and how many court appearances may be necessary, this simply is not the reality. Each case is unique. The key for any defendant is communicating with his/her criminal defense attorney about how and why things are happening. This will help provide a better understanding of what to expect and alleviate some of the uncertainty.
In the fourteen years I have been practicing criminal law, a common question is “What happens at the next court date?” That is usually followed by, “How long is this court case going to take?” Unfortunately, there are no clear cut answers to these questions. Each case is different and has numerous variables. Here is an overview of the basic structure of a criminal case and some of the factors that impact the speed at which things happen.
Part 1 - Felonies
A felony (crimes that can get you a fine, jail, and even prison) typically has a couple more steps built into it compared to a misdemeanor (fine, probation, jail) case.
The first court appearance in the life of a felony is the arraignment. At the arraignment, the defendant will enter either a plea of guilty or not guilty. Most defendants plead not guilty at this initial appearance. This will give your criminal defense attorney an opportunity to obtain “discovery” (the police and lab reports) and also find out what plea bargain the prosecution may offer.
If the defendant is in custody, the defense attorney may ask the court to set a bail review hearing. This typically takes place within a few days after the arraignment. The case is also set for a readiness conference and a preliminary examination. The “Prelim” must happen within ten days of the arraignment unless there is a time waiver. Waiving time can allow your criminal defense attorney to adequately prepare for the Prelim.
The readiness conference allows both sides to sit down with the judge, hear the prosecution’s plea offer, and discuss whether or not a resolution can be reached. If the case is not resolved at the readiness, the parties conduct the Prelim.
At this appearance, the prosecution is required to prove to a judge that there is enough evidence for the case to go forward. The burden of proof for this hearing is much lower than at jury trial. The Prelim is typically much shorter than a trial and only involves the prosecution calling a couple of witnesses. If the judge finds there is enough evidence, the defendant is “bound over.” The defendant is then arraigned on a new charging document called the Information.
Another readiness conference date will be set, as well as a jury trial date. These dates may change for various reasons including further investigation, witness availability, and attempts to reach a “plea bargain.” However, here in California, if a defendant is charged with a felony he/she must be brought to trial within 60 days of that second arraignment. California Penal Code section 1382. If not, and the defendant has not waived time, the defense can ask the judge to dismiss the case unless there is “good cause” for the delay.
If there is a conviction, either by “plea bargain” or a guilty verdict at trial, a sentencing date is set within 28 days.
Tomorrow in Part 2, I will discuss the procedure for Misdemeanors.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.