What is the difference between a felony and a misdemeanor?
A felony charge is a crime where the defendant, if convicted, is potentially exposed to a prison term anywhere from 16 months to life depending on the charge(s).
With a misdemeanor charge, on the other hand, the maximum custodial punishment is one-year in jail, no prison exposure.
The police did not read me my Miranda rights. Can we get case dismissed?
There is a common misconception that police must read you your Miranda Rights once you’re detained, but not in custody, or even after you are arrested but not questioned. This is not true. In general, the trigger for the police to read you your Miranda rights is when you are in custody (arrested and/or not free to leave) and they intend to question you about the alleged crime. This is a general rule of thumb as Miranda law can become complex depending on the situation but it’s safe to say that if you are simply stopped based on reasonable suspicion and questioned, the Miranda rule doesn’t apply, nor does it apply after you are arrested but not questioned further about the crime for which you were arrested.
What is the court process for a misdemeanor?
All criminal courts proceedings start with an arraignment. This is a hearing where the charges against you, as the defendant, are read, you enter a plea of not guilty (usually) and your speedy trial rights are either waived or not waived. At this appearance, your defense attorney receives the complaint documenting your charges and the discovery (usually the police report and other available evidence against you).
A court date is then set, usually several weeks out, for a pre-trial conference at which your attorney will normally confer with the prosecuting attorney and the judge about the details of the case and possible resolution.
Between the arraignment date and the pre-trial conference, your defense attorney will normally conduct any needed and relevant investigation and may decide to file a motion based on the discovery and any evidence derived from investigation. The most common motion that may arise is known as a PC1538.5 motion which is a motion to dismiss evidence your attorney contends was illegally obtained by law enforcement.
If the case is not resolved or negotiations reach a stalemate, then a jury trial is set where the prosecution must, before a jury of twelve, prove beyond a reasonable doubt that you are guilty of the charges alleged.
What is the court process for a felony?
A felony, like a misdemeanor, starts with has an arraignment where the charges against you are read, a plea of not guilty (usually) is entered and your speedy trial rights are either waived or not waived.
Unlike a misdemeanor, however, at the arraignment or soon thereafter, a date is set for a probable cause hearing. This hearing is called the preliminary examination and it is a hearing before a judge where the prosecution puts on the witnesses and evidence necessary to prove probable cause, a low burden that requires the state to show that it is more likely than not that the defendant committed the alleged crime(s). This, of course, is a much lower standard than the beyond a reasonable doubt burden the prosecution must meet at jury trial to secure a conviction.
If you are “held to answer” (Judge finds probable cause) at the preliminary examination, then another arraignment is set based on the findings at the hearing. This appearance is called the arraignment on the information.
The remainder of the court proceedings are similar to that followed by the misdemeanor cases: pre-trial conference(s), hearings on necessary and relevant motions and jury trial if no resolution reached.
Do I have to go to court if I hire an attorney?
In felony cases, you would have to make all court appearances along with your attorney, unless specifically excused by the judge.
In misdemeanor cases, you do not have to make any court appearances as long as your attorney makes the appearance on your behalf, and you have not been ordered to appear by a judge.
What are the potential consequences of an arrest and conviction if I have a professional license?
This can be a very stressful situation for any person whose employment is contingent on a professional license such as a lawyer, a nurse, a teacher, a commercial fisherman, a cab driver, etc. Depending on the type of conviction, there can be severe consequences to the retention and utilization of one’s professional license with consequences ranging from a censure to probation to suspension or revocation. Oftentimes, even a seemingly low-level misdemeanor conviction can trigger a hearing with a professional licensing board. We have successfully handled many of these situations over the years and are very cognizant of fashioning a resolution that will best protect your livelihood.
What are potential immigration consequences?
We deal with immigration consequences (illegal, DACA, legal resident, worker’s permit, etc.) in our cases every day and have a working relationship with immigration attorneys throughout the Bay Area and California on whom we seek advice in a variety of criminal cases with collateral immigration consequences.
We have successfully reached numerous resolutions that have protected our clients from ICE custody and deportation.