Frequently Asked Questions (FAQ)

There are various ways to get a case dismissed in San Diego County. The first is convincing the prosecutor that the evidence does not overcome the “beyond a reasonable doubt” burden; most of the time, this requires investigation to show that the facts are not what they originally appeared to be when the case was first filed.

A second way to convince a prosecutor to dismiss the criminal charges is to provide additional information showing that there was a lawful defense, e.g. self-defense, defense of others, or even legal necessity.

Thirdly, there are statutory programs that allow your criminal defense attorney to file a program requesting diversion. Generally, a diversion program suspends/puts on hold criminal proceedings and requires the defendant to complete certain tasks. If successful, the case will be dismissed- meaning that no criminal conviction will show up on any record or background check. Some of the diversion programs include mental health diversion, military diversion and court-initiated/judicial diversion.

A fourth way to get a case dismissed is to file a motion to suppress evidence, challenging the way in which police obtained the evidence being used to prosecute you. If a judge agrees that the evidence was obtained illegally, i.e. unconstitutionally, that evidence will be “suppressed” and can no longer be used by the prosecution. If that evidence is critical to their case and it’s gone, that means the prosecution can no longer prove their case anymore and they will be forced to dismiss.

A fifth way for a criminal case to be dismissed is to convince a judge to dismiss a case. A judge is given authority to dismiss a case if doing so is in the interests of justice. This is the least common way to get a case dismissed because judges don’t usually want to interfere with the criminal justice process.

The first question that has to be asked is: “when does a cop have to read you your Miranda rights?” Law enforcement must read you your rights when there is a “custodial interrogation.” That means that you are in custody (not free to leave), and law enforcement is asking you questions designed to have you talk about the crime they think you committed. Determining whether you were “in custody” for purposes of a Miranda violation is not always clear cut, and a criminal defense lawyer will have to argue different factors to convince the judge that their client was, in fact, in custody at the time of the interrogation.

Some important examples of when Miranda rights DO NOT have to be read are:

Traffic stops. During a traffic stop, questions such as- where you are coming from? What you have been doing? Have you had anything to drink?- are all legal and your responses will be used against you.

When you are invited to talk to police. During a criminal investigation, a police officer (many times a detective) will call you and ask for a meeting so they can hear your side of the story. If you are speaking to police willingly and can leave at any time, judges will usually allow any statements to be used against you in a criminal prosecution.

If, however, you are taken into custody and law enforcement asks you questions about the crime they suspect you committed, and you give incriminating statements without having first being read your Miranda rights, your criminal defense lawyer can file a motion to suppress those statements. If the motion is granted, the prosecution would be barred from being able to use those statements against you. The exception is that they can still use them if you testify and say something different than what you previously told police.

Guilty in your mind is not what guilty means in criminal court. In our criminal justice system, guilty means that the prosecutor can prove each and every element of the alleged crime beyond a reasonable doubt. So, having a criminal lawyer that is skilled at challenging the evidence can mean that you end up with no criminal record.

But, even if a case can be proven against you, there is always the question of punishment. What’s a fair and appropriate sentence? A locally experienced criminal defense lawyer who has established positive relationships with judges and prosecutors in the courthouse where your case will be heard, and who knows what a criminal case is really “worth,” can best advocate for you. Whether it’s alternatives to jail, a treatment program instead of jail, or building effective mitigation in your case, you want a team who cares and has a proven track record of getting their clients great results.

The first hearing after you are arrested is called the arraignment. At the arraignment, the document listing your criminal charges will be filed (that document is called “the Complaint”). Almost without exception, a NOT-GUILTY plea will be entered and two other topics will be covered: The first is your custody status. If you’re in jail, the judge will decide if you get bail, and if so, how much it will be; or, the judge could decide that you should be released without having to post bail at all (best case scenario). If you are out of jail, the judge can decide whether to impose bail conditions or even raise bail previously posted.

The second topic will be the scheduling of two future court dates: a readiness conference and, with felonies, a preliminary hearing; with misdemeanors, a trial date.

There are three ways: putting up the entire bail amount in cash, contacting a reputable bail-bonds company, or posting a property bond. A bail-bonds company will post the entire bail amount and charge you a nonrefundable fee (usually 10% or less of the bail they posted).

It’s important to note that the decision to post bail is not always a simple one; speaking to a lawyer at a nearby criminal defense firm before posting bail may be very helpful. For example, is there a likelihood that, at the arraignment, the judge may release the person without having to post bail (meaning that thousands of dollars could be saved)?

Or, could the bail be reduced (which also means that lots of money could be saved)?

On the other hand, it’s possible that a criminal lawyer with experience with the local courts and prosecutors will know that there is a high likelihood of bail increasing significantly, which means the person, if they bail out, will have to be put back into jail, and bail out again, or not at all.

There are lots of factors to consider so a call with a criminal lawyer to help with the decision making process is usually a good idea.

This really depends on the case. Generally, misdemeanors are less expensive than felonies. The more complicated the case, the higher the fee.

A person looking to hire a criminal defense lawyer has to figure out whether a lawyer is “worth the cost.” But the real focus should be on the “value” of hiring the right lawyer at the right time. An important question is: “what do I stand to lose if I don’t have the best criminal defense attorney for me?” Once you figure out that value (what you stand to lose- think job, reputation, family relationships), then you can figure out if the criminal lawyer is worth their fee.

Another factor to consider is: has the lawyer and their team earned the respect of judges and prosecutors and do their past results show that they know what they’re doing?

Most criminal defense attorneys charge a flat fee- meaning that there is one price to pay for their services within a certain scope of representation. Everything that the lawyer and their team do (legal assistants, other lawyers at the firm) is all included in the fee.

San Diego County has a great public defender’s office if you are indigent (i.e. you cannot afford a lawyer). However, even if you do financially qualify for a free lawyer through the public defender’s office, you likely won’t have access to that lawyer before the case begins. This can be problematic because, sometimes, what happens while a case is being investigated (before any court date is even generated) can be very critical to the trajectory of the case and in turn, your future.

Another consideration is that you cannot choose which (free) lawyer represents you. The relationship you have with your criminal defense lawyer is an important one. The communication style and expectations have to be aligned. Hiring your own lawyer gives you the power to choose and make sure that your future is in the hands of a person and criminal defense team that you select.

Most of the time, no- unless you tell them, miss work because you are in jail for an extended period of time, or you work somewhere in which your background is regularly checked through a finger printing process.

Consult with a criminal defense attorney. Remember, though, that lawyers are not created equal, and not all lawyers have the necessary experience in the criminal justice field, and the local knowledge (e.g. San Diego County Courts) to be of real assistance. You wouldn’t go to a foot doctor for a heart problem.

A lot of people think: “I know I didn’t do anything wrong, so I have nothing to worry about.” Unfortunately, our system is not that perfect. If you aren’t convinced, look up the various Innocence Projects throughout the country that have exonerated wrongfully convicted people. People who were innocent, spoke to police to tell their truth, and were still arrested, charged, prosecuted, convicted, and sent to prison.

It depends on whether it’s a felony or misdemeanor. It also depends on the severity and complexity of the case. Under the law, a person charged with a crime has certain rights they can assert (right to a speedy preliminary hearing and right to a speedy trial). Sometimes, it makes sense to assert the right to hearings within the timeline under the law, other times it makes sense to extend the timeline. It all comes down to the strategy discussed with your criminal defense attorney.

Anytime you are accused of a crime. Whether it’s just an accusation from someone that is floating around or whether you have already been contacted by law enforcement (a call or a card at your door). The earlier you contact a criminal defense lawyer in the process, the better. A lot of criminal cases exist because of mistakes people make in not asserting their rights at the very early stages.

In its simplest form, a misdemeanor is a crime in which, if convicted, the max amount of time in jail is 1 year or less. A felony is where the max amount of time in jail or prison is 1 year or more. Of course, there are other consequences that automatically apply to felonies, such as the inability to own or possess a firearm, ammunition, etc.

Probable cause is the standard necessary for an arrest. That is lower than what’s necessary for a conviction (beyond a reasonable doubt). But a lot of people think that “evidence” means more than a person’s accusation, i.e.” it’s just their word against mine, so how can I be arrested, let alone convicted of anything?” The law says that one person’s testimony, if believed, can prove a fact. As such, a jury, in theory, could convict based on the testimony of one witness if the elements of the charged crime are met.

Yes, you can be arrested without a warrant. This is typically called a “probable cause arrest.” If a police officer has probable cause that a felony has been committed, they can arrest you in any public place or other place that they are lawfully permitted to be in. For example, if they pull you over for expired tags but they have probable cause to arrest you for a felony, they can do so at the traffic stop. Or, as is very common, they will come to your home, ask you to step outside to speak to them (since they can’t enter your home without a warrant or without your permission) and when you are outside they arrest you.

With misdemeanors, the general rule is that the misdemeanor has to occur in the presence of the officer, but there are exceptions; for example, with certain driving under the influence situations or when a complaining witness conducts a citizen’s arrest soon after the incident and asks the police to effectuate the arrest.

Generally, yes. The obvious reasons are familiarity with judges and prosecutors. There are times when an effective strategy involves action and timing surrounding which judge will be in a courtroom or which prosecutor will be making important decisions. There are also, in some occasions, different approaches depending on the personality of the judge or prosecutor. Unless you are familiar with the local courts, you simply cannot factor in those variables.

Also, if engaging in plea negotiations, the “value of a case,” meaning, what is a good resolution for the defense, can vary greatly from county to county. Therefore, it won’t be possible for a lawyer with little or no experience in the San Diego County courthouses (Vista, Downtown, Chula Vista and El Cajon) to effectively evaluate whether an offer by the prosecution is a good deal. Ideally you want to hire a law firm with the right combination of experience, familiarity, and reputation.