I have a preliminary hearing tomorrow

I have a preliminary hearing tomorrow. What should I do?

Never, Ever, Try to Represent Yourself

Without a strategic and effective legal argument, it will be extremely difficult to defend yourself and your rights against the charges being filed against you. If you are forced by circumstances to go to court without legal counsel, ask the court for an adjournment so that you can get an attorney.

Seek and Enlist the Services of a Lawyer

Seek the services of a lawyer who is experienced in criminal law and has a record of success. While no lawyer can ever guarantee a specific outcome (and beware of one who does), an experienced attorney can mount legal defenses and constitutional challenges that you simply would not think of or know to apply. This will give you a much better chance of winning your case.

Know the Purpose of the Preliminary Hearing

At the preliminary hearing, the judge determines whether or not there is probable cause that a felony has been committed. If there’s not probable cause, the case is dismissed. If there is, however, a trial is set. Cases are rarely dismissed at this stage, but the defense can use the preliminary hearing to find holes in the prosecution’s case and to lock in witness testimony in preparation for the trial. At the preliminary hearing, the District Attorney may add additional charges and may attempt to “remand” the defendant back into custody, even if the defendant is currently out on bail.

Should I allow police inside?

The police are at my door right now and they want to search the house. Should I allow them inside?

No. 

Instead, demand a warrant. This requires that the police go to a judge and show probable cause that evidence of a crime is in the house, and they must be able to detail what that evidence is. If you consent to a search without a warrant, you will lose your right to challenge the search in court. Warrants can only be issued using “reliable” information. If the search is illegal and not based on credible information, you can bring a motion to suppress as evidence anything that was taken, meaning it will not be allowed at your trial.

Even if you think you have nothing to hide, you have nothing to gain by consenting.

The police are at my door. Should I talk?

The police are at my door right now and want to question me. Should I talk?

Do Not Succumb to Seemingly Informal Questioning

Most cases that end up being charged criminally are the result of interrogations such as this. It’s almost always a bad idea to talk to police until after you know what they’re looking for, even if you believe you’re not in trouble or that you’ve done nothing wrong.

Be Wary of Your Words

Keep in mind that anything you say may be used to incriminate you. Seemingly harmless statements such as “I may have hit the guy” and “I had a beer a few hours ago” may turn into “the suspect admitted to hitting the victim” and “the suspect had been drinking.”

Get Help

It’s vital to seek the help of a lawyer who specializes in criminal law and understands police tactics. When interrogating you, the police will often lie about evidence, pressure you, threaten you with arrest, assure you that all will be easier if you simply confess, or even tell you that you will “feel better after you confess.” An experienced criminal defense attorney can guide you through this process and advise you on what to say, and what to not say.

Silence Is Golden

Especially if you are nervous, tired, scared, or under the influence, it is best to exercise your Fifth Amendment right to silence until you’ve consulted a lawyer.

I or a loved one was just arrested

I or a loved one was just arrested. What should I do?

Obtain a Copy of the Criminal Complaint

Find out what charge is being brought against you, and get a copy of the criminal complaint. You can get this from the court file at the clerk’s office since these are public documents. This will give you a brief summary of the charges against you and who the witnesses are.

Determine the Nature of the Charge

Ask if the charge is for a misdemeanor or a felony. A felony will require you to be held in police custody until you appear in court, while a misdemeanor usually allows for immediate bond. Also, find out when your next court date is and, if possible, which judge will be presiding over your case.

Get Help

Seek legal help immediately, taking care to find an attorney who is experienced in criminal law.

Keep Quiet

Do not speak to anyone except your attorney, as everything you say can and will be used against you. This includes cellmates, lovers, friends, parents, siblings, and neighbors. By talking with anyone besides your lawyer, you risk turning them into potential witnesses, which will complicate the case

I want to appeal my sentence.

I was just sentenced and I want to appeal. What is my next step?

Know the Process

If convicted, a defendant may appeal his conviction by filing a Motion for Post-Conviction Relief with the trial judge, or by taking a direct appeal to the Court of Appeals. The conviction will either be reversed or upheld. If the conviction is reversed, a new trial will be held unless the prosecutor decides not to proceed. If the conviction is upheld, the defendant may try to get the Supreme Court to review the case. There is no automatic right, though, to have the case heard, and the Supreme Court only accepts about 6% of all cases filed. The Court of Appeals is designed to correct errors made by the trial court, including procedural errors, while the Supreme Court focuses mainly on constitutional issues that will have a broad, state-wide impact. The Supreme Court will not review for errors made during the trial unless the errors rise to a level that fundamentally caused an unfair trial.

File the Papers

If you wish to appeal your case, have your trial attorney file a Notice of Intent to Seek Post-Conviction Relief. This must be done within 20 days of sentencing. Once this has been done, seek the services of an attorney who specializes in criminal law and will be able to analyze the issues that may have a chance at appeal. These issues include illegal searches and seizure, lack of probable cause to stop or arrest, or a coerced confession.

Keep The Ball Rolling

The appellate attorney must order the transcript and file a Motion for Post-Conviction Relief with the trial court, or if the issues have been sufficiently addressed at the trial, file a Notice of Appeal with the Court of Appeals. Be aware that winning appeals is extremely time-consuming and intricate work, and it’s important that an experienced attorney with a proven track record is the one to handle your appeal.

The Pitfalls of Field Sobriety Tests

Horizontal Gaze Nystagmus (HGN)

In this test, the officer passes a pen in front of your face and you are asked to follow it with your eyes. If your eyes exhibit a jerkiness (nystagmus) during the passes, it indicates intoxication. However, the officer will have to admit that nystagmus can, and does, occur naturally in many people, and that stress and bright lights (which are present at most traffic stops) can bring on nystagmus.

Walk and Turn

The police officer will ask you to keep your hands at your side, walk heel-to-toe 9 steps (counting each aloud), turn and walk back. They will be looking to see if you’re off balance, if you stop, if your heel and toe didn’t touch, if you used your arms for balance, and more. There are many challenges to this test: the slope of the road, presence of gravel, heavy clothing in the winter, high heels, passing traffic dangers, distracting squad lights or spotlights.

One Leg Stand

Only pelicans are physically qualified to do this test – the rest of us bipedal creatures have a tough time! They will ask you to put your feet together and then raise one foot and count to 30 using “one thousand one,” etc. The same test conditions that are troubling for the Walk and Turn apply here.

How to Respond to Police Questioning

Cooperate

If the officers tell you that you are under arrest, do not fight. This will only add to your problems. Simply go with them and follow their instructions. You do not want to make them upset and hurt your chances of a better outcome.

Do Not Answer Questions

Officers will want to perform an initial investigation on scene. You have nothing to gain by telling them anything. Your words will be changed around and used against you. Even if you have not been cuffed, you still should not answer questions without an attorney present.

Assert Your Right to Remain Silent and Your Right to an Attorney

This step requires little explanation. The Constitution guarantees you both of these rights, so use them. Officers will promise the moon to you, but they will only deliver large periods of confinement.

What to do if You are Being Pulled Over After Drinking

Do Not Drink Excessively and Drive

This may seem like a simple and obvious piece of advice, but it is amazing how many people think they can drive home when they are clearly intoxicated. Barring egregious police misconduct, not even the best lawyer can get you out of this bind.

Cooperate with Police

Do not act evasively. Police will generally treat you with more respect and dignity if you are nice to them. Have your driver’s license ready when the officer approaches and always take a few deep breaths to relax so that you are not nervous when he greets you. Answer with one word answers when possible to avoid the illusion of slurred speech.

Concentrate When Asked to do the Standardized Field Sobriety Tests

Officers will not give you a second chance to do these tests. You must follow their directions precisely, this is something they may note of. Also, take these tests very seriously. If you perform well, you may not be asked for a breath sample.

What to Do if You are Having a Party and the Police Arrive

Quiet the Party Down

When the police knock on your door, you must quiet everyone down so that the police cannot determine how many people are there. If they feel it is a large gathering, and they suspect you of operating a tavern without a license, they may care more than if you have a few friends over.

Answer the Door Without Opening the Door

Most doors allow for conversation without being opened. Opening the door allows the police to see inside and make determinations that some other kind of criminal conduct is going on that allows them to enter without your consent. Also, do not let anyone leave. An ignorant party-goer could allow the police inside without your consent.

Do NOT Allow the Police Inside

If officers want to enter your house, tell them to get a warrant. They have no right to enter without your permission or a valid search warrant. Do not help them do their jobs.

Once the Police Have Left, End the Party

A repeat call will agitate the police and inspire them to use other kinds of tactics that you may not be equipped to deal with. Disregarding this step can lead to expensive tickets and nasty legal cases.

What to Do if You Have Been Charged with OWI

Call An Attorney

This is the easiest way to make sure you do everything to give yourself every opportunity to win your case. Always make sure you call an attorney who handles OWI cases regularly.

Request a Review Hearing

The police will give you a form that gives you 10 days to request a hearing to review your administrative suspension. You need to fill this form out and send it back to the DMV as soon as possible.

Enter a Plea of Not Guilty

Most municipal courts allow you to enter a plea via mail. Take them up on this offer to save yourself time.

Request a Jury Trial

In order to preserve your right to a jury trial, you need to request one within 10 days of your initial appearance. If you do not make this request, you forfeit your right to a jury trial.