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Frequently Asked Questions
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We cannot anticipate the many questions you may have when confronted with criminal or driving related charges. However, below we will attempt to address some of the more common questions that have been asked in the past. This page will be updated and supplemented as frequently as possible. If you have a concern that is not covered here, please do not hesitate to contact us for a no cost, no obligation, confidential, consultation.
Q: Can I have a trial?
Yes! In misdemeanors and most DUI offenses, generally crimes where the punishment is up to a year in jail, you have an absolute right to a jury trial before six jurors. You and your lawyer have the right to participate in chosing the jury. In felonies, you have a right to a jury trial before 12 citizens also chosen in a process involving you and your attorney. In all criminal trials, the State has the burden of proving the guilt of the accused. The State's burden is high. To obtain a guilty conviction, the State must convince every single juror that, beyond a reasonable doubt, the accused is guilty.
Q; When should a person contact an attorney?
A: Its a very good idea to contact a lawyer as soon as you learn that you are being criminally investigated, or if you believe that you may have committed a crime. There are several reasons for this. An attorney can intervene with the police and either prevent an arrest or, if you are going to be arrested, arrange for your surrender at a time and in a manner that limits embarrassment to you or your family. Also, a lawyer's involvement at this stage can minimize the possibility of you or others getting hurt or property damaged by the police during the course of your arrest. Additionally, the police often seek to question people they are investigating and people often think it better to talk to the police when the police want to question them. However, talking to the police without first conulting a lawyer could be a very bad mistake. First, people suspected of crimes have been known to sometimes lie to the police thinking they could get away with it. However, when you lie to the police, and they find out, you could be charged with another crime; either a misdemeanor, or a felony. Additionally. when you retain a lawyer, this makes it easier to exercise your right to remain silent. Thus, you aren't making your situation worse than it may already be because your lawyer, as your representative can politely and professionally decline an invitation to tell your side of the story. Frequently, the police have already made up their mind to arrest you by the time they decide to ask you what happened. Therefore, it often really doesn't help you to allow yourself to be interviewed. If you really need to tell your side of the story, you could save your statement for an acceptable future time, such as at some stage of the formal proceedings, say during pretrial negotiations, or at trial. Remember, absolutely no negative inference can be made against you in court for refusing to talk to the police when they request. Its usually wisest to save your statement for a time after you have conferred with a lawyer.
Q: If the person is innocent, why does he or she need a lawyer?
A: Innocent people do get accused, do get convicted, do go to prison,and have even been known to be sentenced to death! Also, people who may have committed one crime often get accused of committing additional and more serious crimes. In this country, whether you are innocent or guilty of committing a crime, you have a right to remain silent at all times. However, even if you have nothing to hide, you can assert this right and still have your lawyer represent you and argue on your behalf. The Govenment will have a lawyer. You really should too.
Q: What should someone do if the police want to question or arrest him or her?
A: Be polite and cooperative. Don't argue or struggle, even if you didn't do anything wrong. You could be charged with obstructing police if you do. Don't say anything to the police except your name and other identifying information. DO NOT discuss the situation with them. Many convictions result from statements made to the police. Whether the officer speaking to you is nasty or nice, he or she is looking for evidence that can be used against you. The police sometimes will attempt to lie or trick you in order to get you to talk. In fact, the law permits them to do so! You should tell the police that you want to speak to a lawyer, and that you do not want to speak to them until you have spoken to a lawyer. For more information, please see the heading above, "When should a person contact an attorney?"
Q: What should a person expect if he or she is arrested?
A: You will be brought to the police station or sheriff's office and "booked." This procedure will include fingerprinting and photographing and obtaining your biographical information. You will be able to make a telephone call (make it either to a lawyer or a family member who can call a lawyer and who has the funds necessary to come bail you out). Depending on the crime with which you have been charged, your bond will either according to a pre-set schedule, or will have to be set at a later time by a judge. The amount of your bail can vary depending on the nature of the charges against you, any previous criminal record, your community ties, whether you are a risk to others or their property, and whether you are a risk to run away. Once the bail is paid, either by cash, professional bondsman, or by someone pledging a piece of real estate (people frequently bet their home equity on an accused showing up for court), you should be released. You must appear at court at the time told to you by the police or the sheriff.
Q: What is bail?
A: Bail is money (sometimes other property) that is held by the court to ensure that the person accused will return to court when he or she is required to do so. So long as the person returns to court as required, the bail will be returned at the end of the case, even if the person is ultimately found guilty and goes to prison. However, if the person does not show up for court, the bail will be forfeited and cannot be returned.
Q: Does the defendant have to put up his own bail?
A: No. Anyone can post the defendant's bail. However the person posting bail must know that if the accused fails to show up to court the money will be lost to the state.
Q: Does the money have to be cash or can it be by bond, surety or property?
A: Bail can always be posted in cash, dollar for dollar. Additionally, bail bond, or surety, is a promise to pay the amount of the bail if the defendant does not return to court when required to do so. Only a licensed bail bondsman can post a bond or surety with the court. Bonding companies are private businesses who will charge a fee to post the bond and will often require some type of collateral (cash or property) for their security. When the case is over, assuming the defendant shows up for court when required, the bond will be released and the collateral will be returned. Bail can also be posted in most jurisdictions by someone pledging the equity in a piece of real estate that he or she owns. For instance, if the accused's parents own a $150,000 house and owe $100,000 to the bank, they may be permitted to post bail based on the $50,000 in equity they have in the real property. However, if naughty son misses court, the State would then have a lien on the house. Additionally, different jurisdictions, that is, cities and counties, apply different formulas when determining the amount of property owner equity that is required to post a criminal bond. In other words, say, as in the above example, there is $50,000 equity in the property offered in a criminal property bond. That usually does not mean that the homeowner can post a bond of up to $50,000. That $50,000 in equity would not be applied dollar for dollar toward the bond, but instead could only be used to post a bond of less than $50,000; sometimes a whole lot less. Each jurisdiction sets its own rules regarding the amount of equity that is necessary to post a criminal bond in a given amount. These rules are not secret. They can be obtained by contacting the local sheriff's department, police department, or magistrate, or city court clerk or judge.
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Q: When Can the Police Search Your House or Belongings?
A: The police may search anything if they have a valid SEARCH WARRANT, signed by a judge. If the police come to your door and show you the warrant, you must let them in. They may search anywhere the warrant permits. The warrant will say right on it where the police are allowed to search. You have a right to see the warrant before you let the police into your house. If the police do not have a warrant, you usually do not have to let them in your house.
If the police ARREST you, they have a right to fully search your person and clothing. They may open and inspect any article found in your clothing. Under certain circumstances, they may also search your pocketbook or any bag you are carrying.
The police may SEIZE (take) any incriminating item which they find in a lawful search. They may also seize any item which they see without searching (if you are stopped while driving, for example, and an illegal item is lying on the front seat in full view, the police may seize it).
Normally, the police are not allowed to search your home without a warrant. One exception is when they are arresting you in your home. If they arrest you in your house, they are allowed to search the nearby area. They are not allowed, however, to travel from room to room, searching through your belongings unless they have a search warrant for your home. It is important if you are arrested in your home to stand in one place; anywhere you travel, the police may be able to search.
Sometimes the police will ask if they can look around your house or car. If you agree, you have consented and they may use anything they find in court against you. The police are able to look and search anywhere if they have your consent. You do not have to consent to any search. They will probably not ask for your consent to search somewhere they can legally search anyway; usually, they will only ask for your consent if they would not legally be able to search with it. You can only hurt yourself and your case by consenting.
Even if you believe you have nothing to hide, you should not consent to a search. You may not know what someone else has left in your car or house; if the police find something, they may not believe you did not know it was there and they may arrest you.
If you give your consent to a search, you may change your mind at any time. Even if the police are in the middle of a search, you may tell them to stop. It is harder, however, to stop a search in progress than it is to refuse to let them search at all, so the better rule is not to agree in the first place.
Q: Can a police officer search my car when I get stopped for a traffic violation?
Generally, no. However, due to the mobility of cars, courts recognize that time does not permit a search warrant to be obtained. As a result, police are motivated to search suspicious automobiles. However,in order to search, the police must have probable cause to believe that illegal material is concealed somewhere in the car. Additionally, if the police have the right to impound your vehicle, say, when making a DUI arrest and no one is available to take the car away from a busy intersection, they also are also permitted to search it.
Q: If I am stopped while driving and the police officer asks or tells me to do field sobriety tests do I have to do them?
A: The police have an absolute right to ask you to perform the tests. However, you have an absolute right to refuse to take the tests. In addition, there are no legal consequences for your failure to take the tests. That is, you don't have your driver's license taken away from you. Since the tests are designed to make you look foolish, no matter how sober you may be, it is freqently best just to decline the officer's invitation to participate.
Q: Should I take the breath test if I am arrested?
A: At the time you got your driver's license, you agreed to submit to a breath, blood, or urine test upon the probable cause belief of the police that you are under the influence of drugs or alcohol to the extent it is less safe to drive. Therefore, if you refuse to take the test, the State of Georgia considers that as a violation of your agreement. Therefore your driver's license could be suspended for a year. Additionally even if you do take the test, if the results are .08 grams percent (that's eight hundredths of one percent) alcohol or above, the State can also suspend your license. If either of these circumstances exist in your case, it is imperative that you request an ALS (Administrative License Suspension) Hearing within 10 days, excluding weekends and holidays, of your arrest. Otherwise your license may be suspended long before you even have a chance to go to court and defend yourself! This office routinely makes the timely request on behalf of our clients--that is as long as you see us before your ten business days run out! This matter is dead serious and there is no room for error or foregiveness.
Q: What if I get a DUI and I have a commercial (CDL) license?
A: If you are charged with DUI while driving a commercial vehicle, and the test of your breath or blood indicated .04 grams percent alcohol content or higher, your license will be suspended automatically unless you request a hearing (known as Implied Consent or Administrative License Suspension Hearing) within ten business days (excluding weekends and legal holidays) of your arrest. Upon conviction for a first offense your CDL is suspended for one year-no work permit. Second conviction in five years will result in a lifetime CDL disqualification.
If you have a commercial license but were not driving a commercial vehicle when you were arrested for DUI, your commercial license would be suspended as of the time of your arrest. Your regular license would not be immediately suspended but would be subject to the usual implied consent rules and DUI law in effect for non commercial drivers.
Disclaimer:
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The Law Offices of Bert W. Cohen 321 Lawrence Street, Marietta, Georgia 30060 In Georgia: 770-574-4030. Toll Free fro Anywhere in the United States: 877-424-8048.
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