Yampolsky & Margolis Criminal Defense Las Vega

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Criminal Defense FAQs

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, 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.
What Are Some Ways By Which People Unintentionally Incriminate Themselves Or Hurt Their Case? In a DUI case, if the suspect is out of the car when the police arrive, the state must prove driving or actual physical control within two hours of the chemical test. A lot of times, the person is standing by his car and they ask, “Is that your car? Were you driving?” If someone answers yes, because of that, the driver has essentially convicted himself of DUI if his blood alcohol level is over 0.08. There are other defenses. The police didn’t see you drive, or they can’t put you behind the wheel, or they can’t prove driving within 2 hours of the chemical test. If they first made contact with the driver while parked, or the police don’t know how long ago this person parked the car so they can’t prove beyond a reasonable doubt that his blood alcohol level was over 0.08 within two hours of driving. If you drink after you have stopped driving, that is not illegal. If you are over the limit but you did not drink until after you stopped driving, that’s a defense to DUI. But this defense that must be pleaded specifically. If you are going to testify that you did not start drinking until after you stop driving. You need to inform the prosecutor of this fact, or you will be precluded from using it. Talking To The Police   Many times, the police may ask something like, “Didn’t you and Mary stab this person?” If someone were to answer, “No. Mary and I were there but I didn’t stab this person. Mary did “under the theory of aiding and abetting or under conspiracy theory, you could be convicted. If you didn’t say anything at all, the police would have to develop other information. People tend to talk too much. They think, “If I just say this, they will let me go,” but it usually doesn’t happen that way. Police are trained to obtain incriminating statements and to intimidate people. Their job is to get a conviction. Once they have a suspect, for the most part, they determine that this is the person that committed the crime and they focus their investigation on that one person. Sometimes, it may have been someone else but the police were so focused on you as a suspect that they do not consider any other suspects. The police question someone, but if that person didn’t invoke their right to remain silent or ask for a lawyer, they will keep asking questions and doing whatever they can to get a conviction. Sometimes, people also will make false confessions, “Yes, I did it. Just let me out of here.” This is a huge problem. Or they may think, “I’ll just tell the police what happened but I am not going to tell them that I did anything wrong.” Sometimes just putting yourself at the scene is enough. That’s how you can incriminate yourself.

The first and most important thing to know here is that whatever you did or did not do, you need to discuss it with an attorney. Anything you tell him will be protected by attorney client privilege. You’re not guilty until you’re found guilty or until you plead guilty. The attorney may or may not ask whether you committed the charge. The answer could be yes, and your attorney could never disclose that fact unless you gave him permission. It doesn’t really matter what you did or didn’t do. What matters is what the state can prove beyond a reasonable doubt. An attorney should be contacted immediately.

It is never advisable to take the roadside tests. You cannot be forced to do them and you have a right to refuse. Most of the time, police will try and bully you into taking the tests. They’ll also have a portable breath tester at the scene and they will ask you to blow into that. You are not required to do this either.

The Nevada case called Byars vs. State codified a Federal law which said that if one doesn’t consent to a blood draw, then the state must get a warrant before they obtain one. In Nevada, you have a constitutional right not to submit to a blood test without a warrant. That’s the good news. If you don’t submit, by the time they get a search warrant and they do take your blood, if it is over two hours, then that helps your criminal case. If they are not able to get the chemical tests within that time frame, they cannot use it to prove that your blood alcohol level was over 0.08.

Unfortunately, in 2015 the Nevada legislature passed the law that said if you do not consent to a chemical test, such as a breath or blood, and are suspected of driving under the influence, in addition to any other penalties, your license will be revoked for one year.

In a DUI case, if you don’t take the test, that increases your chances of winning. That’s the criminal case. However, if you don’t take the test, then you will lose your license for an additional year after the 90 day revocation that you will get if you are convicted of a DUI or lose the DMV hearing.

If you are going to take the rest, the blood test is more accurate than the breath test. So if you know you do not have a lot of alcohol in your system, take the blood test. If it’s close to the 0.08 limit, the blood can be retested, and often, it will come back a little less. If it comes out less, it can’t be proven beyond a reasonable doubt that your blood alcohol level was over a 0.08 at that time.

An attorney would generally resolve such cases so that it’s a non-DUI disposition. A common disposition in a case where there is a witness problem or the blood alcohol level is close to the limit would be a “stayed of adjudication.” This is how a stayed adjudication works. You would plead guilty to your first time DUI, the court would not enter the conviction. You would need to do the minimum DUI requirements including attending DUI School and a victim impact panel (VIP), both are required by statute in all DUI cases. The VIP is a two-hour seminar put on by people whose lives have been adversely affected by a drunk driver.

The DUI school can be done in-person or online, which I recommend because it takes less time. Also, you will need to pay a fine. If you can’t afford it, you may do community service and you’ll be paid $10 an hour. So instead of paying $500, you could do 50 hours of community service but it is recommended that people pay the fine as it’s much less onerous.

In addition, there may be other requirements, such attending AA once a week for a period of time along with community service. If you successfully complete all requirements and stay out of trouble then you will be able to withdraw your plea and enter a plea to reckless driving, which is not a DUI. That doesn’t subject you to the possibility of a second time DUI.

In California, the laws are different than Nevada. They have something called a Wet Reckless, which means if your DUI is reduced to reckless driving and it is considered a wet reckless, if you are convicted of another DUI, that wet reckless becomes a DUI for enhancement purposes. In both California and in Nevada, if you are convicted of a DUI three times within seven years, the third time becomes a felony which carries a non-probationable penalty of 1 to 6 years in Nevada state prison.

What Should Someone Do If They Are Stopped And Interviewed By The Police?

If the police confront you, you need to identify yourself. If you do not identify yourself, most likely you’re going to get arrested. Lots of times, especially in sex cases, police will say, “Hey, so and so has accused you of doing this. Would you like to come in and tell us your side of the story?” Many people go down to the police station and willingly incriminate themselves. It is always advised not to talk to the police.

Get In Touch With An Attorney

Sometimes, people are uncomfortable. They’ll say, “Well, the police said I had to meet with them,” but the reality is you don’t. If you hire an attorney, he can write a letter to the policeman saying, “Hi, I represent Mr. Smith. It’s my understanding that you wanted to talk to him regarding an incident that allegedly took place. I have advised him not to speak to law enforcement, so he will not. Please do not contact my client directly. If you’d like to discuss this situation, please contact me. If you decide to charge my client with a crime, please send the summons to me”.

This lets the police know who is representing you it also tells them that they can’t talk to you. In that case, the police can send the summons to the attorney who will appear at the client’s initial arraignment, which is the first court appearance.

The police can either send the summons to a person saying “You’ve been charged with the crime, you need to come to court on a specific date,” or they can swear out an arrest warrant, which means they will go out and arrest the person and then there will be a first appearance, usually while the client is in custody. An attorney wants to make sure this doesn’t happen.

When the attorney contacts the police and writes the above mentioned letter, if a summons is sent out, it will be sent it to the attorney, who will appear at the first court date, plead not guilty on his client’s behalf, set a preliminary hearing date or a trial date and get a copy of the discovery; police report’s witness statements, blood analysis, etc. The attorney will then go over this information with the client and figure out which way to proceed from there.

If there is an arrest warrant and the attorney discovers it, he files a motion to quash the warrant and bring their client into court. The attorney may present the letter and say “My client knows he might be charged with the crime and he is not going to go anywhere. He is not a flight risk and is not a danger to the community. I have been retained for all stages in the proceeding.” More often than not, the judge will quash the warrant and grant what’s called an O.R release (release on your own recognizance), which means you don’t need to post bail. 

However, because there was a warrant, the client has to do what’s called a “walk through.” This means that they will have to appear at the Clark County Detention Center to present themselves in order to be processed and then they will be released. It sounds like a pretty simple process. However, as the jail can be backed up, the process could take up to 12 hours. 

In the event there is an arrest warrant and the client is out of state, depending on the circumstances, the attorney may be able to get the warrant quashed without the client’s presence. The client doesn’t need to return unless they proceed to trial. Often a written entry of plea will be accepted by the court in misdemeanor cases so that the client does not need to return at all.

Entering A Plea

In the waiver of appearance and entry of plea, document, there must be a waiver of rights that says, “I recognize I have the right to remain silent and the right to proceed to trial, the right to call witnesses on my own behalf, the right to confront the State’s witnesses and the right to make the State prove their case beyond a reasonable doubt. I am waiving these rights, the attorney can appear for the client and conclude the case.

In some cases, depending on the situation, a suspended sentence may be imposed. (If the client does everything he is supposed to do, there will be no jail time.) For instance if someone pleads guilty to a crime, such as misdemeanor possession of controlled substance, he will usually attend and complete drug counseling, pay a fine, and agree to stay out of trouble. If he doesn’t successfully complete all requirements, he will be convicted of the crime, the suspended sentence will be imposed, and there will be a jail sentence that he must serve.

In this type of situation for an out of town client, the attorney must do a written entry of plea. But, If the case is resolved and there is no suspended sentence, the attorney is able to enter the plea on behalf of the client without a written agreement. For example, the attorney may say, “Your Honor, I have authority to enter this plea. My client will plead no contest to possession of controlled substance, will pay a $500 fine and will complete lower court counseling.”

In other cases, in which the attorney is able to make a deal ahead of time, the matter can be closed during the first court appearance. The attorney would say “Your Honor, here is the completion certificate for the lower court counseling. I have my trust account check for the $500 fine. At this time, I move to have the case dismissed.” The attorney will then present the judge with an order dismissing the case and at that time would be able to seal the record.

What Effect Do Prior Arrests Or Prior Convictions Have In A Criminal Case?

When someone is arrested, their obvious first reaction is that they want to get out of jail as soon as possible. The best case scenario is that you will be released on your own recognizance, meaning you do not have to post bail. However, if you have a previous conviction, you most likely will have a bail set. Depending on what the offense is, there is usually a standard bail, as set by law.

If you have a prior arrest or conviction, it’s more likely that you’re going to have a higher bail. In some cases, you may not get bail at all. This may be the case for charges of some sex crimes or in murder cases as well. Under the U.S. Constitution, you are entitled to a reasonable bail except in a capital case. In the capital case, they can deny bail altogether.

Bail can be paid in several ways. For example, if the bail is set at $5,000, you can post cash bail, which means you post the entire amount with the court. At the end of the case, assuming you showed up and did everything you were supposed to do, you will get the $5,000 back. In the event you don’t have the $5,000 and want to be released, you might hire a bail bondsman. A bail bondsman will post the $5,000 and you will pay the bail bondsman 15% of the actual bail amount. This 15% is mandated by Nevada law.

If you don’t show up for court, the bail bondsman is then on the hook for the full amount of the bail, which would be forfeited by the court. This is the reason why bail bondsmen have the authority to find and arrest people. They can hire bounty hunters. It’s in the bail bonds company to apprehend the clients that have absconded. Should this occur, the person would not get out of jail until the case is resolved, if at all. The bail bondsman would have the bail he posted returned.

Keeping The Person Out Of Jail

Oftentimes, the attorney can make a motion for bail reduction or release on your own recognizance. Sometimes, bail conditions might even be suggested by the attorney, such as proposing, if the client is released, he should be required to of wear a GPS monitor. The authorities will know where he is at all times. They can subject him to house arrest which means he would have to remain in his home unless he has permission to go to work, see his attorney, doctor, etc.

They can subject a person to what’s called “Intensive Supervision” so even though he’s out on bail, he has to check-in person at the Probation Department or Pre-trial Services Department every week just to make sure he is not absconding.

Costs of Being Charged With A Crime

First, the client has the cost of hiring an experienced attorney. They also have to pay bail, and in order to properly defend the case, sometimes an investigator or an expert may be needed, which is the client’s responsibility, and that also costs money. In some cases, the attorney may be able to get the court to pay for an investigator or an expert.

Cases which involve a lot of costs which the client cannot pay, an attorney will file a motion with the court saying, “Your Honor, my client is in custody. He can’t help me investigate this case. Based on that fact and the fact that he’s indigent, I would like the court to appoint an investigator to assist me,” and generally they will do it.

This happens especially where the client is in custody. The court will generally appoint an investigator, a ballistics expert, an accident Reconstructionist, or a DNA expert if it’s appropriate in that particular case.

The number one thing to know if you are accused of a crime or if police want to talk to you is, don’t talk. You can always talk later. Do yourself a favor and discuss your matter with an attorney first. When you discuss the matter with your lawyer alone, there is an attorney-client privilege. Even if you tell the attorney that you have committed the crime, the attorney will still be able to defend you and you can plead not guilty.

In a situation in which the client admits to the attorney that he has committed crime, the attorney has an obligation to the court not to put on perjured testimony, The attorney can’t and won’t put the client on the stand and have him say, “I didn’t do it”. The attorney will instead make sure the State can’t prove its case by using various techniques including cross-examination and discrediting adverse witnesses. If there is physical evidence that doesn’t fit the prosecution’s theory, the attorney can also bring that up. Sometimes, going to trial is not in the best interest of the client. In a plea bargain, it’s the attorney’s job to get the most favorable result possible.

An attorney’s first job is to keep their client out of prison. If they can do that, it’s a win. Their second job is to avoid having their client convicted of a felony. When someone is convicted of a felony, they can’t own a gun, can’t vote, can’t serve on a jury and there are other rights that will be taken away. The final thing is if the attorney can walk out of court with their client and have the case dismissed that is a grand-slam home run.

Yampolsky & Margolis Criminal Defense Las Vegas

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