Frequently Asked Questions
Criminal: State and Federal
Why should I hire a lawyer?
Having an experienced lawyer represent you could mean the difference between a conviction and a dismissal. Time is of the essence. Often, if you hire an experienced attorney prior to your arraignment, the attorney can work to build a defense before charges are formally filed, and possibly avoid the filing of charges altogether.
What should I do if I am arrested?
You shouldn't talk to police until you have talked to a lawyer. Simply say, "I'm sorry, however, on the advise of my lawyer, I am not going to answer any questions." Then, ask to speak to your lawyer.
How do I bail someone out of jail?
Call my office for free assistance in obtaining release for a loved one. You should know, bail is a temporary measure. Arrestees can obtain release on their own recognizance, or apply for a bail reduction. Ask Attorney Cleary about Bail Reviews and Release procedures for your loved one.
Can the police search my house?
In most cases, the police may not enter your home to conduct a search without a proper search warrant, unless the homeowner consents to the search by inviting them in or if they are in pursuit of a suspect. You have a right to be presented with a copy of the search warrant to check its validity. You should read it to make sure they have the right house, and it isn't expired. You do not have to assist the police in their search; however, you may not deter them should they have a valid warrant.
Is medical marijuana legal?
California state law allows holders of a marijuana prescription (marijuana card) to medicate themselves with marijuana obtained from a marijuana dispensary that operates under the proper state guidelines and sanctions; however, the federal government operates under different laws and regulations than the state government. According to the federal government, the distribution and use of medical marijuana of any kind is illegal.
What is the difference between state and federal crimes?
State laws are rules and regulations designed to ensure the orderly operation of the society within a state. These laws only apply to the residences of the state and do not cross between states. When one breaks a state law, he or she will suffer the consequences outlined by the state in which the crime was committed. Federal laws are rules and regulations designed to ensure the orderly operation of society between states. Federal laws are the rules that tie all states together. When a crime is committed that crosses one or more state boundaries, it falls within federal jurisdiction, and the committer will suffer the consequences outlined by the federal government.
Are border crimes federal or state crimes?
Border crimes, such as alien or drug smuggling from a foreign country into the United States, are considered federal crimes. They are not crimes against one state or another but crimes against the country as a whole, so they fall within federal jurisdiction.
What to do if stopped for a DUI?
You have a right not to answer questions about where you've been and what, if anything, you've been drinking. It's none of their business. You have a right not to participate in the Field Sobriety tests. You are not obligated to take these tests. Simply say, "I am sorry I am not going to submit to any tests. I understand they are unreliable."
You have a right not to take the PAS (preliminary alcohol screening device) test. This is a hand held device that is usually kept in the trunk of the police car. It doesn't satisfy the chemical test requirement, and it may be used as the basis of an arrest. Thus, it often adds to the confusion of the moment.
My best advice is not to drink and drive. It takes the average 150-pound man only three drinks to reach his limit. Generally, the average drink is defined as a 6 oz glass of wine, a 1 oz shot of 80-proof-hard liquor or one 12 oz beer. California requires you to take a chemical test if the officer suspects that you are under the influence. If you drink, apply these guidelines and you shouldn't give them any reason to arrest you.
In California, DUI(s) are the single largest revenue raiser of any offense in the vehicle code. They fund criminal and administrative systems that prosecute suspected drunk drivers. Unfortunately, it is also the single offense that results in the highest number of innocent people falsely convicted.
What does this mean to you?
For an individual accused, don't procrastinate. The DMV's "APS" suspension action on your driving privilege begins thirty days after your arrest. However, you have 10 days to request a hearing to show the suspension is not justified. Request a hearing. You have the right to have an attorney represent you at the hearing. An attorney can request this hearing on your behalf, but the same 10-day time frame from the date of arrest still applies.
What happens at an APS hearing?
The APS or Admin Per Se hearing is a hearing where the DMV determines whether or not your driving privileges will be suspended. It is separate from the criminal action against you. There are three issues usually examined when preparing a defense; the lawfullness of the stop, the lawfullness of the arrest, and whether they can show, by admissible evidence, you were over the legal limit when driving. The key is at the time of driving not at the time of the test. By consulting your attorney, you can begin to build the best possible defense.
Is there life after the APS?
DMV cases can be won. Usually, they are won on a technicality. To obtain the reports, you must request "discovery" from the DMV. You or your Attorney should obtain the reports as soon as possible. You can also obtain the report from the arresting agency (i.e. the police, highway patrol, or sheriff). Normally, the APS hearing is before the first court date or arraignment.
What happens at court?
If you win the APS, the DMV will not suspend your driving privilege. However, the court may restrict your driving privilege to and from work and in the course of employment. So, the lesson is don't delay or you'll be taking the bus. If you have any questions please feel free to email or call me for a free case evaluation.
What are the consequences of sex registration?
Under California penal code section 290, any person convicted of a crime requiring sex registration is required to register for the duration of their life while residing in California. Certain offenses can apply for an exclusion from the Megan's law website; otherwise, your address, photograph, and crimes will be listed on the Internet for the general public to view.