Frequently Asked Questions
- What is the difference in a felony case and a misdemeanor case?
- How is a criminal case initiated?
- What do I do if I am arrested?
- Do the police have the right to search my home or automobile?
- Do the police have to read me my Miranda rights?
- How do I make bail?
- What is an indictment?
- What do I do if I am under investigation?
- What is the law of DWI in Texas?
What is the difference in a felony case and a misdemeanor case?
Felony cases are more serious in nature and the consequences for being convicted of a felony are more severe. Felony crimes are punished by incarceration in a state or federal penitentiary, while misdemeanor charges are punishable by jail time in a county jail. Felony punishment can range from a minimum of 6 months in a state jail facility to a maximum penalty of life in a penitentiary. Misdemeanor cases are generally punishable from a minimum of 30 days to a maximum of 1 year in a county jail.
How is a criminal case initiated?
A criminal case is initiated either at the moment of a person’s arrest, or at the moment a formal criminal charge is filed in the appropriate court of jurisdiction.
If a person comes into contact with the police and is taken into custody, a criminal case is initiated at the moment of the person’s arrest. On the other hand, if the police, an investigating officer, or a complainant swears out a complaint in writing against an individual, and that writing is presented to a judge who finds that the accusation has enough merit that it is supported by “probable cause,” then a warrant will issue for the person’s arrest charging him with the conduct. However, a criminal case is not “initiated” until the person is arrested pursuant to the warrant.
Lastly, if a person is the target of an investigation, the District Attorney will take the charge before a Grand Jury for an indictment, and if the Grand Jury renders an indictment finding there is probable cause for an arrest, the case begins at the time the indictment is filed with the Clerk of the Court. Misdemeanor cases are initiated by the filing of what is known as an “Information” with the Clerk of the Court.
A person may be under investigation and not even know it. A person may be indicted by a Grand Jury and not even know it. Frequently, innocent people are completely surprised by the fact that the police come to their home or place of business to make an arrest pursuant to a warrant which has been issued by the presiding Judge.
What do I do if I am arrested?
If you are arrested, be courteous to the arresting officer or officers, and request that you have the right to contact an attorney before you answer any questions. If you cannot afford an attorney, you have the right to request that an attorney be appointed to represent you before answering any questions. Without knowing the facts of any particular case, as general rule, it is a bad idea to agree to be interrogated by the police without first consulting an attorney.
Never lie to the police. However, most incriminating statements used in evidence against Defendants are obtained by the police prior to the time the suspected person has had a chance or opportunity to consult with an attorney. You can always talk to the police later. You should wait and answer questions after your attorney has advised you and when an attorney is also present with you.
Do the police have the right to search my home or automobile?
Your home has more sanctity under the law than does your automobile. Your person has more sanctity than does your automobile.
Although many exceptions to the warrant requirement exists, generally the police may not search your person or your home without a search warrant, unless the search is incident or happens at the same time as, a lawful arrest.
Your motor vehicle is a different matter. If you are stopped by the police for a legal reason, the law requires that your detention last no longer than the time necessary for the police to confirm or dispel the initial suspicion for the stop. However, if during the period of contact with the police, the police have probable cause to believe that contraband or drugs are in your car, the police may search the car without a warrant. Probable cause must be based upon articuable facts known to the police officer which give rise to a reasonable suspicion that the person is involved in criminal activity. Stated another way, if you are pulled over for speeding and when you step out of the car you smell like alcohol or pot, the police will have reasonable suspicion to detain you longer to investigate the circumstances of the alcohol or pot. The person may be asked to perform field sobriety tests if the officer smells alcohol on their breath. The officer will be allowed to search the car if a noticeable odor of marijuana smoke emanates from the car. On the other hand, if the person is pulled over for speeding, that fact alone does not give the police the right to search the vehicle for contraband or drugs.
This entire area of law is governed by the Fourth Amendment to the United States Constitution and the parallel to that constitutional provision contained under Texas law. Although the Fourth Amendment and its progeny is complicated and convoluted, the law still generally requires a warrant in most circumstances. However, there are so many exceptions to the warrant requirement, that the exceptions practically swallow up the rule requiring a warrant. Finally, any evidence obtained by the police illegally is inadmissible against the person at the time of trial under what is known as the “exclusionary rule.” The exclusionary rule is a court doctrine put in place by the courts to deter unlawful police conduct. If your lawyer feels the police made a mistake in obtaining evidence against you and that the mistake justifies precluding illegally obtained evidence, your lawyer will file a Motion to Suppress Evidence for a legal determination to be made by the presiding Judge. The facts of each case are different and this determination is made on a case by case basis.
Do the police have to read me my Miranda rights?
No. The police only have to read you your Miranda rights if they intend to use your answers to their questions as evidence against you at any subsequent trial. As a precaution, the investigating officer will read a suspect his or her Miranda warning 99% of the time. Only incriminating statements made which are the result of custodial interrogation are inadmissible at trial if a person was not given their Miranda warning prior to the questioning. If the police feel they already have enough evidence to obtain a conviction, they will not attempt to question the suspect and thus, the Miranda warning will not be given. Again, that is why it is always best to be polite and courteous to the arresting officer or officers, never lie to the officer or officers, but assert your right to remain silent until you have had a chance to consult with your attorney.
How do I make bail?
Every person is Texas who has been arrested for a crime has a constitutional right to have bail set pending the person’s trial, with very few exceptions. You generally do not have a right to be released on bail if at the time of an arrest the person is already on bail for a prior felony charge that has not yet been resolved. Very serious and aggravated crimes allow the court to hold a person without bail under very limited circumstances.
The more serious the charge, the higher the amount of bail will be required before the person is released. “Bail” is made when a surety bond in the amount set by the presiding Judge is presented to the agency where you are detained, whereby the surety promises to pay a certain amount of money if you fail to appear at court at directed by the presiding Judge. Bail is usually posted by professional bail bondsmen, who charge a premium or fee for posting bail which is ordinarily around 15% of the total. What this means is, if your bail is set at $10,000.00, you can usually be arranged to be released on bail for a fee of $1,500.00. However, the fee charged by a bail bondsman is not regulated by law, and it can be in any amount agreed between the detained person and the bail bondsman. Frequently, your attorney can make the bail for you and secure your release as part of the attorney’s fee. It is usually a good idea to consult with your attorney first before posting bail so you do not spend money twice on securing your release. However, if you are arrested late at night or on a weekend, an attorney is probably going to be harder to find and you will need to utilize the services of a bail bondsman unless you are willing to wait until you can locate an attorney to help you. Our firm will post bail for an accused person in most cases in which we are representing the person. You ordinarily will have to have money readily available to pay your bail bondsman or your attorney to obtain your release.
What is an indictment?
An indictment may only be issued by a Grand Jury. A Grand Jury meets in secret, usually at the behest of the District Attorney, or the United States Attorney in federal cases. If members of the Grand Jury feel that there is enough evidence against the person to support putting them on trial for a crime, the Grand Jury will issue what is known as a “true bill” or in layman’s terms, an indictment. An indictment is literally a formal written charge accusing a person of a crime signed by the foreman of the Grand Jury. The indictment is then filed with the Clerk of the Court of appropriate jurisdiction to formally initiate a criminal case.
A criminal prosecution may commence and proceed against a person in Texas for a felony crime only after the Grand Jury has rendered an indictment. You do not have a constitutional right to appear and testify before the Grand Jury at the time the case is being considered, although most prosecuting attorneys will allow the accused to do so if requested by the accused.
This is not to say you cannot be arrested for a felony crime without first being indicted. Frequently an arrest is made prior to an indictment. The case just cannot proceed into the court without the prosecuting attorney first obtaining an indictment.
What do I do if I am under investigation?
If you learn that you are under investigation by the police for any crime, you should ordinarily hire an attorney immediately to help you. A good investigating officer will contact the accused and simply tell him he is being investigated and ask the accused to come to the investigator’s office to answers. If you receive such a contact from a law enforcement officer, usually it indicates that the police are gathering evidence against you to take to the District Attorney for prosecution. The police will not necessarily make an arrest first prior to doing their investigations. In fact, a good investigating officer would usually not arrest you until all of the evidence has been gathered unless they feel you are a flight risk. If you receive a call or otherwise learn that you are under investigation, you are probably going to be asked to answer questions. It is usually the safest policy to agree to answer questions only after you have consulted with your attorney.
What is the law of DWI in Texas?
It is against the law of Texas to operate any motorized vehicle, aircraft or boat if you are intoxicated. “Intoxication” means the loss of your normal physical and mental faculties, or if your blood alcohol level is .08% or greater. The problem with DWI laws in Texas and other states is that most people do not know at what point they are intoxicated if they have been drinking. A few social drinks at your favorite restaurant or club could render you intoxicated under the law.
Our advice? Don’t drink and drive. Don’t expose yourself and others to serious injury and death. If you are stopped for a DWI, remember that you are probably be tape recorded and videotaped. You usually will be given a chance to perform field sobriety tests. You should not submit to a breath test or intoxilizer test unless you are certain that you will pass. If you personally feel you have had too much to drink, you probably will not pass the breath test. If on the other hand, you have only had two beers in the last two hours with a meal; chances are good you will pass. Whether or not to take a breath test has to be your decision, because you won’t have the opportunity to consult with an attorney prior to the time you make your decision.
Texas is an implied consent state. That means everybody that drives in Texas impliedly consents to submit to a breath test if probably cause exists that you have been drinking and driving. If probable cause does exist and you refuse a breath test, your driver’s license will automatically be suspended for 90 days, and if you take a breath test and fail it your license is automatically suspended for 180 days. Your attorney can obtain an occupational driver’s license for you in connection with the representation on a drunk driving case.