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Criminal Defense FAQs

Being Charged In State Court Or Federal Court

In state court, depending on the facts, the attorney is usually able to resolve a case so that the charge is eligible for probation and his client doesn’t spend any time in prison. In federal court, the penalties are much more severe. There are mandatory minimum sentences. The Federal sentencing guidelines (FSG) calculate a range of punishment. Your criminal history and the offense level will determine how long someone will spend behind bars. Obviously the more serious the crime and the more extensive the criminal history, the longer the sentence will be. Judges are not bound by these guidelines. They can sentence you to more time or less or even to probation, but usually they will follow the FSG.

In federal court, if you are convicted of a white-collar crime such as wire fraud, securities fraud, bank fraud, money laundering or any other similar crimes, you will go to prison. So, the way your case is handled makes a huge difference. We will fight to keep the case in state court so the possible outcome is not as severe. It is much easier to resolve the case so that your client does not go to prison.

There is also another type of court called Municipal court which handles misdemeanors committed within the actual city itself. Those cases are heard in Las Vegas Municipal Court, Henderson Municipal Court and North Las Vegas Municipal Court. The most serious crimes that the municipalities face are misdemeanor DUIs and misdemeanor domestic violence cases. For a felony or a gross misdemeanor charge, even if it takes place within the city, municipal courts do not have jurisdiction, so it would be prosecuted by the State or by the Clark County district attorney’s office.

Oftentimes, when someone is arrested within city limits for something such as possession of drug paraphernalia (a misdemeanor) or possession of cocaine (a felony), the paraphernalia charge will be handled in the municipal court whereas the felony charge will be prosecuted in justice court even though it’s part of the same incident.

When this happens, attorneys like to do what’s called a ‘Global Resolution’ and resolve both cases at the same time. That’s obviously better for the client. Usually, when it’s a drug case and is a straight possession charge as opposed to possession with intent to sell, attorneys are able to knock down the charges to a misdemeanor and in a best case scenario, have it dismissed.

Oftentimes, attorneys also do something called a ‘Deferred Adjudication,’ which means that the client who was charged with the felony will usually plead to the misdemeanor charge and then the court will withhold adjudication, which means they won’t enter it as a conviction. Generally, the client will need to complete some requirements, such as completing drug counseling, paying a fine and community service. If everything is successfully completed, then the case will ultimately be dismissed.

Once the case is dismissed, a record can then be sealed. Sealing a record is a separate procedure. It’s a civil procedure in which you obtain your criminal record, also called scope, which shows that you were arrested and what you were charged with. The criminal record will also show that the case was resolved and dismissed. However, if anyone were to look, they would see that you were charged with a crime. This is when the procedure of Sealing The Record would be beneficial.

Felonies And Gross Misdemeanor Crimes

The difference between a misdemeanor and a felony is that a misdemeanor will stay in justice court. The most you could be sentenced to would be six months in the county jail and the highest fine would be $1,000.

If you’re charged with a gross misdemeanor (GM)or a felony, you’d be entitled to a jury trial. The maximum penalty is one year in the county jail and up to a $2,000 fine for a GM. If you are convicted of a felony, you’d be subject to Nevada state prison for at least one year. There are lower level felonies that are one to five years or one to six years and those are generally eligible for probation.

Some felonies are not eligible for probation, however. Those would include crimes such as sex crimes, including lewdness with a minor under 14. In cases like that, the attorney will try and resolve it to something that is probationable such as attempt lewdness or statutory sexual seduction. That would be a gross misdemeanor or felony depending on the age and the sentence is one to five years in the state prison but it is eligible for probation.

For both gross misdemeanors and felonies, if you’re charged by a complaint, it means that a district attorney has reviewed the police reports and decided there is enough evidence to move forward.

First, you go through a preliminary hearing, which is called a ‘Probable Cause Hearing’. This means that the state needs to prove there is probable cause to move forward and that the state should be able to bring this person to trial.

An important fact to consider in these cases is that there is a different standard of proof. During the preliminary hearing the standard of proof is slight or marginal evidence. Once you go to trial, the standard of proof is beyond the reasonable doubt, which is much higher.

The reality is that the truth never changes. If something really happened, then what you say when you talk to police, during the preliminary hearing and at trial should all be the same.

There may be minute variations but if somebody says one thing in the police report and another at the preliminary hearing, obviously they can’t both be true. The prosecutor will most likely assume a person is lying and judges, obviously do not appreciate that. Things like these happen often, and most of the time when a client changes their story, that hurts their case.

In federal court, the first hearing is during the initial appearance. There will be a complaint filed. There’ll usually be an agent from the FBI, DEA or maybe even a customs agency. The agent may say, in the complaint “I am Mr. Smith and I worked for the DEA for 16 years. I’ve handled hundreds of investigations involving controlled substances. In this situation, I saw John Smith meet with other people, have a scale, weigh things, meet with people in cars and talk about certain things on the phone. In my training and experience, I believe he was committing the crime of distribution of controlled substance or conspiracy to distribute controlled substance.”

Before the preliminary hearing, the prosecutor will present the case to the grand jury and the grand jury will hand down what’s called a “True Bill,” which is an indictment. In federal court, I have NEVER seen any case proceed to a preliminary hearing. The Federal Government will always indict, unless a deal is worked out prior to the filing of the indictment, and the client may “proceed by information” (an information is another word for complaint) which means the client waives the right to be indicted and the information sets forth the crimes to which he is pleading.

In addition to being charged by complaint, you can be charged by an indictment, which means that your case is presented to a grand jury of 18 to 23 people. The prosecutor would present their evidence and the defense lawyer is not allowed to say anything, though the client can testify. However, that is not usually a good idea, and I always advise my clients not to attend.
If you go to trial in state court and you lose, you may file an appeal, which will either go to the Nevada Appellate Court or the Nevada Supreme Court. If it goes to the appellate court, that will be the last hearing. If you lose, that is the end of it. You can request a Supreme Court review but it’s not often given. For your case to go to the Supreme Court, it would have to be one involving life imprisonment such as murder, first degree kidnapping, or a death sentence. There are seven justices on the Nevada Supreme Court and they have what’s called a Northern Panel and a Southern Panel with three justices sitting on each. Normally, those panels will make the final decision. However, if the conviction is affirmed, the defendant can request an “En Banc” hearing.’ This means all seven of the justices will hear the case and rule. In most cases, once the three-judge panel makes the determination, the Supreme Court will not rehear the case. Nevada is in the 9th circuit, which is a federal appeals court for several states: Nevada, California, Arizona, Montana, Washington, Hawaii and Oregon. If you have a federal case in any of those states you would try it in the Federal District Court. If you appeal, then it goes to the 9th circuit court of appeals. If you lose at the 9th circuit court of appeals, then you can file an appeal to the U.S. Supreme Court on federal constitutional issues. However, U.S. Supreme Court only handles 1 in 7,000 cases. Another way you can get to the U.S. Supreme Court is if you are convicted by the highest court of the state, such as by the Nevada Appellate Court. You may file a ‘Writ of Certiorari’ I won a case in front of the U.S. Supreme Court.

You Have The Right To Remain Silent

When individuals talk to the police, they have an obligation to tell the truth, however, police do not have the same obligation. One of the things someone being questioned may think is, “Well, you know, if I just talk to the police, they’ll believe me and I won’t be accused of a crime. If I cooperate when they ask me questions, it will be better for me.” That’s not true at all.

When police question a suspect, they are trying to develop information during their investigation that will help convict that person. In cases in which there are co-defendants, the police will often say, “Well, Mr. Smith said that you were the one that stole this television and he is willing to so testify If that happens, you are going to go to prison. It will be easier on you if you just tell us what happened”. Oftentimes, the other person isn’t going to say anything and the police haven’t developed enough evidence to convict the client, but if the client cooperates by being nice, it gives the police incriminating information.

This can very well be explained by an analogy that says, “What’s one of the similarities between a fish and a criminal defendant? If they kept their mouth shut, they wouldn’t have been hooked.”

People like to talk, and in situations like these, they feel they must talk. Everyone knows about Miranda Rights, “You have the right to remain silent. You have the right to an attorney. If you can’t afford one, a lawyer will be appointed to you at no cost to you.. If you say anything that’s incriminating, it can be used against you in the court of law.” The best thing in these cases is not to say anything at all.

Sometimes, it’s difficult to remain silent, and police may try and bully you. For example, many times, in DUI cases, the police will ask questions. But the less you say the better. You must provide your license registration and proof of insurance because you need to identify yourself. However, you don’t need to answer any other questions.

Do Not Lie To The Police

The worst thing you can do is lie. Police will ask if you have had anything to drink and may say you smell of alcohol. The client may answer no. In such a case, the police officer could charge you with giving false information to police, which is a felony, in addition to charging for the DUI. You are advised not to say anything at all in such situations.

Case law says that unless you specifically invoke your right to remain silent, the police can keep asking you questions. In such a case, you can say, “I’d like to invoke my right to remain silent,” or, “I would like to exercise my right to self-incrimination”, or simply, ”I’ll take the Fifth”

Although that’s the best thing to do or say, but if you’ve been drinking, it’s going to be difficult for you to articulate that without slurring your words, which itself is an indication of driving under the influence. So say as little as possible “ I take the Fifth!”

What If The Police Office Asks Me Questions?

Oftentimes, the police will say, “Well, if you have nothing to hide, why won’t you say anything?” In this case, the person should say, “My lawyer advised me not to talk to law enforcement without him being present”. If the officer persists again, the person can say, “I do not want to say anything”.

We usually give our business card to clients which has certain things written on the back that the client should know. When asked questions, rather than saying anything, the client can present the officer with that business card. On the back of the card it reads, “I want to exercise my right to remain silent and consult with my lawyer without exception. I do not want to talk about giving up my rights until I have consulted my lawyer. I want to call my lawyer. I do not consent to a search of any kind, any test, any lineups or any other identification procedures. I do not agree to any of these things without my lawyer present. I do not want to waive any of my constitutional rights”. That’s pretty definitive.

If the officer continues to ask questions after the client has unequivocally asked to invoke his right against self-incrimination, and the person answers them, that would be a violation of that person’s rights. Based on that violation, their attorney would be able to get the evidence (The Defendant’s Statements) thrown out. The lawyer would file a Motion to Suppress evidence. This motion can be filed because the evidence was gained unlawfully as the client invoked his right to remain silent and the officer continued to question him. Or the officer may have conducted an illegal search. Once the evidence is suppressed, then the prosecution must go forward without it.

Know Your Miranda Rights In A DUI Case

Everyone knows what Miranda Rights are. They’ve seen them on T.V, and could probably recite them by heart. One common misconception is that if you are not given your Miranda rights, your case must be dismissed; however, that is not accurate. Usually in a DUI case, the officers will not inform you of your Miranda Rights. Many clients will say, “They didn’t inform me of my Miranda Rights, so the case has to be dismissed.”

Well, that’s not the case. Miranda Rights protect you against Self-Incrimination. i.e. Statements that you made that would be incriminating in which you were not given your Miranda Rights. For example, if you’re in police custody and they ask, “Did you steal this television?” and you say, “Yes,” without being Mirandized, they would not be able to use that statement against you as evidence in court.

In a DUI case, after they pull you over, the police will often have you do roadside tests, which are referred to a as field sobriety tests (FSTs). One is the Horizontal Gaze Nystagmus (HGN) test. In this test the police officer will stand in front of you and move his finger or a pen back and forth in front of your face and have you follow it with your eyes without moving your head. If you do this test and your eyes show Nystagmus, which is involuntary jerking of the eye, this is an indication of being under the influence of alcohol.

Another test they will often have you do is the Walk and Turn test. This is a test in which you walk a straight line, heel to toe, nine steps forward, turn around and walk nine steps back. They will often demonstrate this but they won’t say anything else. If you use your arms to balance, (which is completely natural) or if your heel is not close enough to your toe or if you step off the (real or imaginary) line, these are clues that you have failed the test the police will say that that this indicates that you are under the influence of alcohol. Therefore, you will fail. It’s very difficult to pass this test. The scoring is subjective, you are not informed of some things that you are not supposed to do, i.e. use your arms for balance. Or maybe your heel is not close enough to your toe., but you were never given an exact distance between your heel and toe that would be considered too far apart.

A third test that is often given is called the One Leg Stand. You must hold one leg up off the ground for 30 seconds. Many times the officer will have you count One -one thousand, two one thousand, 3 one thousand etc until you reach 30. Some people can’t pass this test stone-cold sober and others have medical conditions, that might make this very difficult, i.e. inner ear problems prior surgeries to the legs. Most people don’t normally hold 1 foot up for 30 seconds It is unnatural. The interesting thing is whether the police officer reads you your Miranda Rights or not, it doesn’t matter because the field sobriety tests are not testimonial. You didn’t SAY anything that incriminated yourself. It was your actions.

One common misconception is if the police don’t read you your rights, then the case will be dismissed. This is not the law. Any statements that you made that were incriminating while in police custody (meaning you were not free to leave), if you were not read your Miranda Rights, those statements must be suppressed by law. But it doesn’t mean that your case is automatically dismissed.

For example, if you shot someone and you’re charged with battery with a deadly weapon, with substantial bodily harm and police take you into custody, if they don’t read you your Miranda Rights, and you say, “I shot Johnny,” (If it’s not suppressed) that would be incriminating. Based on that statement, you could be convicted.

In addition to your statement, if there is someone there who says, “Yes, I saw Mr. X shoot Johnny.” Even if they suppress your statements, you would be convicted. If there is additional evidence such as an eyewitness you can still be convicted, and your case won’t be thrown out.

However, if the only evidence they have is your statement and your statement is illegally obtained, because you weren’t given your Miranda Rights, then the prosecutor would not be able to proceed.

Yampolsky & Margolis Attorneys at Law

Call For A Free Legal Consultation
(702) 385-9777

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