Criminal Defense FAQs
- If the police seek to question me before or after arrest, do I have to speak to them?
- Can I go to jail for the charges that I am facing?
- Should I have a trial in my case?
- If I'm found guilty, will it be on my record forever?
- What happens to the bond money I paid to be released from jail?
If the police seek to question me before or after arrest, do I have to speak to them?
The answer is always no. You do not need to answer any of the questions posed to you by the police. You must always remember that any statement you make, incriminating or otherwise, can and will be used against you. You have an absolute right guaranteed under the Constitution to remain silent and your silence cannot be used against you. Plain and simple, if the police have enough evidence to arrest you they will do so. Do not provide the officers with any more evidence than they may already have against you. Doing so will only weaken your case and assist the prosecution in achieving a conviction down the road. If you are arrested, remain silent and request a lawyer.
Can I go to jail for the charges that I am facing?
The possibility of jail depends on the type of offense for which you have been charged. If you are charged with a petty offense such as an ordinance violation or minor traffic violation, you cannot be sentenced to jail. The most severe punishment would be a fine and perhaps community service.
Misdemeanor charges may be punishable by jail time - but only in the county jail where the offense occurred. Misdemeanor offenses include more serious traffic violations such as driving while suspended or revoked or DUI. There are various types of misdemeanor offenses and the maximum county jail sentence may range from 30 days to 364 days. The probability of going to jail for a misdemeanor offense depends upon many factors which include, but is not limited to: the severity of the offense, whether or not someone was injured as a result of the offense, the defendant's criminal background, and whether mandatory sentencing provisions apply. Other sentencing options may be available which do not include jail including, e.g., court supervision, conditional discharge or probation.
If you are charged with a felony, you could be sentenced to a period of imprisonment in the state prison system. The length of imprisonment depends upon the type of felony. Although county jail time can be given to felony offenders under certain circumstances, most jail sentences are served in state penitentiary.
Should I have a trial in my case?
This question is not easy to answer and is dependent on many factors.
The first step before making a decision is to obtain and thoroughly review the arrest reports and other police reports prepared in your case. Sometimes, we detect a problem in the manner by which the police placed you under arrest. If this occurs, we file a motion to quash (or defeat) the arrest in your case. If we are successful in presenting this motion to the court and the motion is granted, all of the evidence gathered against you after the arrest cannot be used by the State. Therefore, the prosecution may be severely limited in the amount of evidence they can present against you and often leads to a dismissal of all charges. If the arrest was made properly, the State still has the burden of proving the charges against you beyond a reasonable doubt. This is a difficult burden for the prosecutors.
If the evidence is deficient, or there exists other problems with the case, we will let you know and, in all likelihood recommend that we proceed to trial. If we do not believe that there is a reasonable likelihood of success in proceeding to trial, we will negotiate the very best resolution possible, and dispose of the case by way of a plea of guilty. In certain cases, we may believe that even though there is not a great likelihood of being successful at trial, it is worthwhile to proceed to trial because the sentence is likely to be the same even if you were to plead guilty.
Because every situation is unique, the decision to take a case to trial must be made with a great deal of care and caution after having weighed all of the pros and cons. We will consult with you every step of the way before reaching a final decision. Once the decision is made to proceed to trial, our office will help you determine whether a trial before a judge or a jury is the appropriate choice in your case.
If I'm found guilty, will it be on my record forever?
The answer to this question depends entirely upon the charge against you and what sentence you received. If you were charged with a misdemeanor criminal offense and received court supervision, there are some important things to know. If the sentence terminated satisfactorily (i.e. you did not commit any other crimes during supervision and satisfied all of the sentencing conditions) the offense will not appear on your public record. It does, however, remain in the databases that are accessible to the police and government officials. Cases where supervision was terminated satisfactorily allow the defendant to expunge and seal this sentencing record. However this does not occur automatically until you file a petition with the court.
Depending on the type of offense charged, there is a period of time after the case has concluded before such a petition can be filed. In cases where the charges are either dismissed, or there is a finding of "not guilty" after trial, one may immediately petition to expunge his or her record. In cases where there was a misdemeanor conviction (i.e. a sentence of conditional discharge or probation), one may petition the Court to seal the record from public view only. However in such a case the record may not be expunged, i.e., completely deleted from the criminal records kept by the government.
Certain offenses may not be expunged or sealed under the law, e.g, where you have been charge with driving while under the influence.
Felony convictions generally may not be expunged or sealed except in cases where the person was granted a special type of probation available to first-time drug offenders charged with either a large amount of cannabis or any amount of a controlled substance. Otherwise, felony convictions remain on a person's record for life.
What happens to the bond money I paid to be released from jail?
Unless you were released on your own signature (known as a 'recognizance bond') after your arrest, you posted money with the police department that arrested you or paid money directly to the Clerk of the Circuit Court after a bond hearing before a judge. This money is held by the Clerk of the Circuit Court until the conclusion of the criminal case. At the conclusion the case, the Clerk of the Circuit Court will keep 10% of the amount paid as an administrative cost. The remaining money can be utilized in a variety of ways. If you entered a plea of guilty or were found guilty after trial, there will often be a fine included in the sentence. The bond money (minus 10%) can be used to satisfy this fine either in part or entirely. If you want the money (after deduction of the 10%) to be used to satisfy legal fees owed to their attorney, you can request that the judge assign this money to be paid directly to the attorney. Otherwise, any remaining bond money will be refunded to the person who posted the bond.
This is only a small sample of the questions that clients have about their case. If you do not see an answer to any questions you have, feel free to contact us by phone or e-mail and we will do our best to help you.