If you have been charged with a DUI, contact Carlsbad & Oceanside DUI Lawyer & Criminal Defense Attorney, Richard Duquette: 760-730-0500

IF YOU’VE BEEN ARRESTED:
Call an experienced San Diego criminal defense attorney immediately. The attorney can advise you of your rights while in police custody and help protect you from hurting your chances in court. He can prepare for and appear at your arraignment, arguing against the prosecutor’s request for the judge to set bail. He can thoroughly investigate your case and interview witnesses who may help you. Ultimately, he can challenge the evidence against you in court proceedings such as suppression hearings and trial.

Being arrested means that you are taken into custody and not free to go. You can also be legally detained for a short period of time for questioning if you are suspected of being involved in a crime.

If you are arrested or detained you do not have to answer questions except to give your name and address and show identification if asked. However, if you do answer questions you must tell the truth, as knowingly giving false information to a police officer is a crime.

POLICE OR CITIZEN ARRESTS
Anyone can arrest an individual for a misdemeanor if that person actually sees the misdemeanor occur. This rule applies to private citizens as well as police officials. However, private citizens and law enforcement officers are allowed to arrest suspects for felony offenses even if they did not see the suspect commit the felony, if they have good reason to believe that the suspect committed the felony.

ARREST WARRANTS
Normally, an arrest warrant is necessary before a person can be arrested at their residence. However, if exigent circumstances exist where immediate action is necessary to prevent a suspect from hurting someone, escaping, destroying evidence or damaging property, then a warrant is not required.

An arrest warrant must be signed by a judge or magistrate that has been supplied sufficient facts to reasonably believe that the person named in the warrant committed the crime. If a warrant is issued, a law enforcement officer may arrest you even if he or she does not have a copy of the warrant. However, before entering your residence, law enforcement officers must knock and identify themselves and state that you are to be arrested. If you then refuse to allow the official in, forcible entry is allowed.

If the officer has a warrant, you are allowed to see it and if they don’t have a copy, they are required to show you a copy as soon as practical.

If you are arrested with an arrest warrant or otherwise, an immediate search of the area around you may be searched for weapons. If you are outside then your auto or house may not be searched without a search warrant. Resisting a legal arrest, even if you are innocent, is a crime.

IF THE POLICE ARE LOOKING FOR YOU:
If the police are calling your home asking to speak with you, you may be a suspect in a criminal investigation. Quite often, the detective will seek to question you on the telephone about the incident, and then ask you to come voluntarily to the station house to “straighten things out”. If you go to the station house, you will probably be asked to talk further about the case. Ultimately, you will be asked to sign a statement giving “your side of the story” (but usually written or typed by the detective). While this might seem like a good opportunity to get out of trouble, this is not a good idea. The statement will generally be constructed to include an admission of some guilt in the matter. The best thing you can do if the police come to your home or call for you on the telephone is to answer no questions and call an experienced defense attorney immediately.

The police can sometimes arrest you even without your statement. For example, if the police are in possession of an active arrest warrant or a bench warrant (a warrant issued for failure to appear in court), they will come looking for you. If they do not believe you are a flight risk, they may call you by telephone and try to arrange a voluntary surrender. Another example is where the police believe that they already have enough evidence against you to constitute “probable cause” (although no warrant has been signed). Since your arrest may be unavoidable under these circumstances, it may be wise to voluntarily surrender rather than force the police to find and capture you. Of course, it is crucial that you do not make any statements to the police or answer their questions, and that you quickly obtain legal counsel. An attorney can negotiate the terms of your voluntary surrender in a manner which can minimize your time in police or court custody. A person who voluntarily surrenders on a warrant is always looked upon more favorably by an arraignment judge during a bail application. The manner in which a lawyer handles the arrest and arraignment process in these situations can mean the difference between a release in one’s own custody and the setting of a high and unaffordable bail.

IF YOU ARE IN POLICE CUSTODY:
In Miranda v. Arizona, the United States Supreme Court held that prior to any questioning of a person in custody, the police must advise the person of certain rights. These rights, commonly called the Miranda Rights, are now generally as follows:

• You have the right to remain silent.
• Anything you say may be used against you.
• You have a right to have a lawyer present while you are questioned.
• If you cannot afford a lawyer, one will be appointed for you.

The police will often read these rights off a preprinted card. They will read you these rights only if they intend to question you. After reading them to you, they will question you in an effort to get you to incriminate yourself. They will write down your statements, and often ask you to sign a written version. Answering questions but refusing to sign a written statement doesn’t help you. Oral confessions can be just as damaging as signed written ones. Answer no questions until you have spoken with an attorney.

What if the police neglect to read you your rights? It could result in a major blow to the case against you. Even a full written confession to the crime can be thrown out of court. And if the confession led the police to further evidence against you, that evidence could be thrown out as well. Keep in mind however, although evidence is thrown out, the case itself is not necessarily dismissed. If there is other evidence of your guilt, that other evidence could still be used to prosecute you. Also, remember that Miranda is limited to custodial interrogation. If you are not in police custody, such as in conversation on the street or over the telephone, the police can generally question you without reading your rights. And if you are in custody, but spontaneously volunteer statements (not in response to questioning), the police can write down your words and use them against you in court.

IF YOU ARE STOPPED FOR DRUNK DRIVING; INFRACTION, MISDEMEANOR OR FELONY
In California and most other jurisdictions in the United States crimes are placed into three different categories according to the seriousness of the charge and punishment possible.

Infractions are minor offenses like traffic tickets. The punishment can only be a fine and a loss of license or other restrictions but no custody.

A misdemeanor is a more serious offense that normally carries a possible jail sentence in county jail up to one year and a substantial fine. Typical misdemeanor offenses are DUI and petty theft. Normally, for a first offender, misdemeanor probation is granted and the defendant is not sentenced to jail but instead placed on probation.

A felony is a serious offense which is punishable by a sentence to state prison.

RELEASE FROM CUSTODY
If you are arrested and then the police officer believes you are innocent, you should be released and given a written document stating that you were released. The arrest then is considered a detention and not an official arrest and should not be recorded as an arrest.

BAIL
You may be released from custody on your written promise to appear in court at a specified date and time. If you willfully fail to appear after signing to appear such act is a separate crime and an arrest warrant is normally issued.

If taken into custody you have a right to have reasonable bail set. Initially, the arresting authorities set bail and upon request the arrested person may have bail reviewed by a judge or magistrate. Generally, officers at jail can accept bail posted either by you or by someone in your behalf. If you arrange bail through a bail bondsman they normally charge a 10% of bail nonrefundable fee and require collateral.

When you appear in court for your first hearing, the judge may lower the bail or release you on your own recognizance. In considering bail, by law you are presumed guilty. The judge considers the seriousness of the charges, your criminal record if any, and whether you have failed to appear in court previously. Your ties and standing in the community are also normally considered.

ARREST RECORDS
The State Department of Justice, local police department and federal agencies keep arrest records. Generally, your arrest record is available to other law enforcement agencies and certain licensing agencies that have a right to investigate the criminal record of individuals. In certain incidences, arrest records may be expunged or modified. For example, in California most misdemeanor convictions can be legally changed after completion of probation to indicate a not guilty finding.

IF ARRESTED, HIRE AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY
If a case is serious enough that you are arrested it means that there is a possibility that you can be sentenced to jail. Most misdemeanor cases carry a maximum sentence of six 6 months to a year in jail. Felonies are punishable by a sentence in state prison, with maximum sentences normally starting at three years to life or capital punishment in a few charges. Thus, if you can go to jail it is wise to hire an experienced criminal defense lawyer to represent you. The fees vary depending upon the seriousness of the charges and the resulting complexity of the case

If you have been arrested for a DUI or need to be re-referred to an alcohol program to clear your DMV record, contact me HERE or give me a call: 760-730-0500. I offer a FREE no obligation consultation for your DUI case and look forward to helping you with your San Diego Court or Vista Court legal matter.