Frequently Asked Questions in Criminal Defense Cases

Here are some Frequently Asked Questions from those accused of a crime. If you are being accused of a crime, do not wait because you could be jeopardizing your case and your constitutional rights. Contact us today for a free consultation.

What happens after I’m cited or arrested?

After an arrest or citation with a promise to appear, the officer will write up and submit a police report to a prosecuting agency. This is normally the District Attorney’s Office or City Attorney’s Office. At that point, it would be up to the prosecutor to decide what, if any, charges are to be filed.

I wasn’t given a court date.

If officers took down a police report but you weren’t arrested or signed a promise to appear citation, then one of three things may happen after the officers submit their report to the prosecutor.

  • 1) The prosecutor may file charges and send you a letter in the mail notifying you of your next court date;

  • 2) The prosecutor may file charges and request a warrant be issued for your arrest; or

  • 3) The prosecutor may decide not to file charges.

How long does the Prosecutor have to file a case?

Depending on the type of case and charges, the answer will vary.

Misdemeanors

Generally speaking, prosecutors only have one (1) year from the date of offense to file a misdemeanor charge. 1 However, there are a number of exceptions to this rule for crimes of domestic violence 2, crimes against minors 3, and certain financial crimes.

Felonies

This is where it gets more complicated. Generally, prosecutors only have three (3) years from the date of offense to file a felony charge. 4 However, there are even more exceptions to this rule including crimes of domestic violence 2, crimes punishable by eight (8) or more years in state prison 5, and sex crimes 6, amongst others. The list is exhaustive.

Should I contact a Criminal Defense Attorney before charges are filed?

YES!

There are many things that an experienced criminal defense attorney can help your with before charges are filed. The biggest one being preventing charges from getting filed. I have successfully negotiated with prosecutors in many cases before filing that resulted in reduced charges or “no files.”

One of the reasons to hire an attorney “pre-filing” is to get in front of the charges. Normally a filing prosecutor receives a police report with bare facts and one side of the story. From there, they have to make a quick decision on whether to file charges. Once charges are filed it becomes very difficult to negotiate for reduced charges or a dismissal, even with evidence of innocence, because of the bureaucracy in the prosecutor’s office.

On the other hand, if you hire a experienced criminal defense attorney “pre-filing” it allows that attorney to present mitigating evidence to the filing prosecutor, who would be the sole decision maker on whether to file charges. No bureaucracy. 

Can I just talk to the police and convince them not to file charges?

NO!

The best advice that I give to my family and friends is to never talk to the police if there’s even a remote possibility that you could be a suspect in a crime. As a trained and experienced criminal defense attorney, I would personally never talk to the police even if I knew I was 100% innocent.

The reason is because anything you say can and will be used against you. The problem is police officers are trained to write reports a certain way, which is a persuasive manner that puts you in the worse light possible. Simply put, there is nothing you can say that will convince an officer of your innocence.

I wasn’t given my Miranda Rights when I was arrested, does the case get dismissed?

The short answer is No. But the long answer is, it depends.

Despite what you see on television and in movies, Officers are not required to give you your Miranda Warning 7 prior to arresting you. The Miranda Warnings are only necessary before custodial interrogation. The failure to provide the Miranda Warning may result in the suppression of your confession.

This is a complex area of law, contact us immediately if you’ve experienced this issue in your case.

Why should I hire a Private Criminal Defense Attorney instead of getting a Public Defender?

Public Defenders are the backbone of the criminal justice system. They are on the frontlines every day fighting to protect our constitutional rights. I will never say anything bad about a public defender. However, there are three reasons I will give to hire a private attorney instead: Time, Experience, and Money.

Time

The biggest benefit of hiring a private criminal defense attorney would be time. Time that your attorney works on your case and the time you can save from having to go to court. The biggest drawback with having a public defender is that they won’t have as much time to work on your case as a private attorney would. It’s no surprise that most public defenders are overworked and underpaid. As much as they want to, they don’t have the time to dedicate to your case like a private attorney would.

Also, as a general practice, Mr. Lin appears on behalf of his clients without their presence in court. 8 This way you don’t have to spend your entire day sitting around in court.

Experience

It’s a fair statement to say that the average Deputy Public Defender has far more experience than the average Private Criminal Defense Attorney. Once again, they are overworked but with that work comes experience. The problem becomes that because they are court appointed, you do not get to choose your public defender and you’re stuck with whoever is appointed on your case. This could be someone without the experience needed on your case. Of course, you can try to ask the court to replace your public defender but that will only happen if there is evidence of ineffective assistance of counsel, malpractice, or conflict of interest. 9 These requests are rarely granted.

But, when you hire your own attorney, you get to decide who represents you. Mr. Lin is no average Private Criminal Defense Attorney. Having worked both as a prosecutor and a defense attorney, Mr. Lin has a unique prospective when it comes to your case. But also, as a court appointed attorney, Mr. Lin has handled well over 1,000 criminal defense cases, which is more than some attorneys ever do in their entire career. When you hire Mr. Lin, you get the benefits of both time and experience behind you.

Money

Interesting enough, money may be a reason that you cannot get a Public Defender. Although you have the right to an attorney, you are only appointed an attorney if you cannot afford one. Not everyone is entitled to a Public Defender. In order to obtain a Public Defender on your case, the court may require you to fill out a financial declaration to determine if you are legally indigent. There is no hard number for what income level you are, rather it’s a discretionary call by the judge based on a number of factors. Simply put, you may not be able to get a Public Defender even if you wanted one.


References
  1. California Penal Code section 802, subdivision (a).[]
  2. California Penal Code section 803.7, subdivision (a).[][]
  3. California Penal Code section 802, subdivision (b).[]
  4. California Penal Code section 801.[]
  5. California Penal Code section 800.[]
  6. California Penal Code section 801.1.[]
  7. See Miranda v. Arizona (1966) 384 U.S. 436[]
  8. California Penal Code section 977.[]
  9. People v. Marsden (1970) 2 Cal.3d 118.[]