Frequently Asked Questions

Criminal Law

If I am not under arrest, do I have to answer a police officer`s questions?

No, and you should never do so! Unless you are placed under arrest, you are free to leave at any time. However, if a police officer stops you while you are walking, and asks you for identification, it is probably in your best interest to provide such information, but nothing more. The courts have allowed police officers to detain people for extended periods of time in an effort to determine the identity of the individual. If you are detained, you should assert your right to a lawyer immediately!

Must a police officer always advise a person of their Miranda rights before asking a question?

No. The Miranda warning is only required to be given to a suspect during a custodial interrogation. This means that the person being questioned is in custody or in an environment in which the person does not believe that he is free to leave.

For example: Officer Jones is investigating a robbery at the local supermarket. The cashier indicates that a patron named Mary Smith may have seen the robber. When Officer Jones interviews Mary, Mary makes statements implicating herself in the robbery as a lookout. Can Mary`s statements be used against her later, even though she was not read her Miranda Warning? The answer is yes, because Mary was not in custody when she was being asked the questions. Therefore, Mary was free to leave if she wanted to. Obviously, Mary should have remained silent and refused to answer any questions until her lawyer was present.

Can I be arrested for questioning?

No. Police can request you to accompany them to a police station for questioning but you are not required to go unless you have been arrested for an offence. You should never speak with the police until you have first spoken with your attorney, and you should immediately ask for a lawyer to be present during questioning. The inquiry then must stop.

If I am in custody, how do I assert my right to remain silent?

A person who has been arrested need only say I want to speak with an attorney or I have nothing to say now. If the police continue to question the suspect, the police have violated the suspect`s 5th Amendment rights. Anything that the suspect says after the violation is inadmissible as evidence in court. Our office strongly urges you to immediately assert your right to an attorney when questioned by officers under any circumstance, whether the questioning is before or after Miranda warnings are given.

Can I waive my Miranda rights?

Yes. If you have been arrested, and you have been given your Miranda warning, then anything that you say can and will be used against you in court. Again, our office strongly recommends that you immediately inform the police of your desire to have a lawyer present prior to any questioning!

But the police officer said that if I talked, he would help me out, or that it would go better for me if I told my side of the story.

These are things police officers always say. Police officers have little or no control over what happens to you after you have been arrested. The ultimate determination of what you will be charged with, is up to the prosecutor , and how you will be sentenced if you plead guilty or no contest, or are convicted after trial, is up to the judge. In other words, police officers are free to lie to you about any fact to get you to confess to a crime. They can tell you that a co-defendant has confessed and implicated you, or that you have been positively identified by someone as a crime participant, when those facts are not true. If you implicate yourself thereafter, that statement can be used against you.

For example: a few years ago in our county, the police hooked up an unsophisticated suspect to a laptop computer and told him it was a "truth machine". Fortunately for him, he did not buy into this garbage, but people have done so in the past to their later detriment when their statement is presented at trial.

What if the officer wants me to take a voice stress analysis test or a lie detector test?

Don't do it. You are under no obligation to submit to such a test. This is a new tool the police have and they love to play with it. The test is far less reliable than a properly run polygraph (lie detector machine), and is not admissible in Court. Also, do not submit to a polygraph conducted by law enforcement. If our office believes that a polygraph might result in a dismissal of charges, we can arrange for a defense polygrapher to conduct the test. Our local District Attorney's office will generally accept his results if they review his chart.

What is bail?

If you are arrested and taken to jail, you are, in most cases, eligible to post bail, based upon a schedule set by the court for the offenses for which you have been arrested. Bail is money or other property that is deposited with the court to ensure that the person accused will return to court when he or she is required to do so. If the defendant, or friend or relative, posts cash bail, and the defendant returns to court as required, the bail will be returned at the end of the case, even if the defendant is ultimately convicted. However, if the defendant does not come to court when required or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned, if the defendant is not surrendered within a six month period.

If a defendant posts bail through a Bail Bond company, he or she generally pays a 10% premium to the bondsperson, and those funds are not refundable, regardless of the outcome of the case. Mr. Sullivan's brother owns ABC Bail Bonds, which is the largest bail agency in San Luis Obispo County, so Mr. Sullivan can easily assist clients and their families with posting bonds, when necessary.

If I am charged with a crime should I hire an attorney?

You have the right to hire an attorney of your choice, so long as that is done at a reasonable time in the Court process. In other words, you cannot generally come in on the date of trial and ask the Court to allow you to have a new lawyer, unless that lawyer is ready to proceed with trial. Most people who are out of custody and want their own lawyer, hire one before the arraignment (see below). The Court will also grant a brief continuance if you want to hire a lawyer, and have not yet done so.

In addition, you may be entitled to a Court Appointed Attorney at Public expense, if you qualify as an indigent person. An indigent person is one who cannot hire an attorney without causing substantial hardship to him or herself or their dependent family. If you have been charged with a crime, you may complete a Financial Declaration, and request that the Court appointed the Public Defender at your first court appearance. If you qualify, an attorney will be appointed for you. If you are convicted of a crime, the court may require you to repay some or all of the cost of your defense if it determines you are able.

What happens at an arraignment?

You have the right to be arraigned without unnecessary delay - usually within two court days after being arrested, if you have not bailed out based upon the local bail schedule. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on personal recognizance, even if bail was previously set.

If you are charged with a misdemeanor, you can plead guilty, or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case. In San Luis Obispo County, if a plea, which accepts responsibility for the offense, a no contest plea is almost always the preferred plea to be entered, as opposed to a guilty plea.

Before pleading guilty or no contest to some first time offenses, such as drug possession in small amounts for personal use, you will want to determine of you are eligible for a deferred entry of judgment program. Under that program, instead of fining you or sending you to jail, the court may order you to get education and counseling, which can result in dismissal of the charges if you complete the counseling, and commit no new offenses.

If misdemeanor charges are not dropped, or no plea bargain is reached, a trial will be held later in our Superior Court. If you are charged with a felony, however, and the charges are not dismissed (which frankly, is very unlikely at that stage if charges have been brought by the DA), the next step is a preliminary hearing.

What will happen at a preliminary hearing?

Every person who is charged with a felony is entitled to a preliminary hearing. If a person remains in custody, he or she is entitled to a preliminary hearing usually within 10 court days of his or her arraignment. If a person is released from jail on bond or O.R, he or she is still entitled to a preliminary hearing within that ten days, but routinely the cases are continued to a later date.

A preliminary hearing is an examination of the charge against the accused. The prosecutor must present evidence and witnesses that prove that it appears that an offense has been committed that there is probable cause to believe that the person accused committed it. The accused may cross-examine witnesses and may present evidence if he or she wishes. Prior to the passage of Proposition 115, the DA was required to present enough evidence through live witnesses who could testify about their knowledge of the events. Now, police officers are allowed to testify as to the statements made to them by the witnesses (which would ordinarily be not admissible as "hearsay") to establish probable cause. This change has made the preliminary hearing far less meaningful than it used to be, and, in cases where the result is an obvious finding that sufficient evidence exists to merit a trial, it is often waived entirely. In some cases, however, the defense can still present evidence, and can call a witness whose statement was given by police testimony, if there is good reason to believe the testimony will be contradictory.

If the judge makes a finding of probable cause after hearing the evidence, the charge is certified for arraignment on the second charging document, the Information. It is at that arraignment that a felony case is set for trial. If the accused is discharged and the charge dismissed after a preliminary hearing, the prosecutor may still either re-file the case, and have a second preliminary hearing, or present the case to a grand jury to see if they will find probable cause.

I don't understand all this plea bargaining stuff, I just hear the politicians say it is a bad part of the justice system. What is that all about?

The criminal justice system in this county has several thousand cases a year which have to be resolved. In many cases, the DA will charge every conceivable crime under the facts, including alternative charges (for example; charging someone with the theft of an time, or, alternatively, that the defendant received or possessed stolen property). Plea bargaining allows these cases to resolve in a fashion that compromises the DA's general desire to get the maximum from a case, and the defense's desire for a dismissal in every case. Because of the facts of most matters, plea bargains are reached, to try to establish a fair plea to both sides, an, often more importantly, a fair sentence with which both sides can live. I have been very successful over the years in resolving those cases that should be resolved, nad trying those cases that should be tried.

What is the role of the judge in a criminal trial?

The judge is who is in charged and controls the legal proceedings in the courtroom. He or she will determine whether certain evidence is admissible or not. The judge will also rule on preliminary matters and discovery and evidence issues that the defense and prosecution may have.

Before a jury decides a case, the judge instructs the jury as to how the law guides them in the particular case.

What happens if I am sentenced for committing a crime?

If the case is resolved through a plea or sentence bargain, the Judge will, in most cases, sentence you within the limits of the plea agreement or indicated sentence by the Court. The judge can decide to not accept the plea bargain, or withdraw his or her indicated sentence, but you would be entitled to withdraw your plea if that occurred.

In misdemeanors, most every defendant is sentenced at the same time a plea is entered. Some cases, where the court want, or must have, the input of the probation department, the case will be set for a time three to four weeks after the plea is entered.

In felony cases, the Court almost always refers the case for a pre-sentence report by probation. Sentencing is a minimum of 20 Court days after plea. At the time of sentence, both the prosecution and the defense are given the opportunity to present documentary evidence and testimony to advocate for an appropriate sentence. Ultimately, it is the judge's decision what will occur. Although many crimes have specific sentences, the judge will generally view the character of and circumstances surrounding the defendant, and the severity of the crime in determining what sentence will be imposed.

I came to San Luis Obispo County on vacation, and got in trouble. I went back home, and did not appear when I was supposed to do so, and now there is a warrant for my arrest. What do I do?

This is a common problem in our popular tourist area, and I have handled hundreds of these matters over the years. If it is a misdemeanor case, I can appear on your behalf before the court, and the warrant will likely be recalled. In most cases, the case can be resolved without your ever going to court, as individuals charged with misdemeanors can appear through their attorney. I would then look to the facts of the case, to try to work out a resolution that is comfortable to you, within the parameters of the law and the facts.

In felony cases, the court is likely to require you to post bail prior to an appearance. Depending upon the circumstances, a bondsman will still agree to post bail fo you, even if you have failed to appear in the past. You must appear in Court, at least at the initial appearance, and may be allowed to sign a document which allows your attorney to appear for you. If a plea is to be entered at some point, you would have to appear for that to occur.

Whether the charge is a misdemeanor or a felony, there are significant negative consequences by avoiding answering to a charge. Our office urges you to contact us if you are in this position, and my staff or I can review your case, and explain your options in more detail.

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