Criminal Law Info
Frequently Asked Questions – Criminal Defense
I AM BEING INVESTIGATED BY THE POLICE BUT HAVE NOT BEEN OFFICIALLY CHARGED, SHOULD I TALK TO THE POLICE?
You should consult with an experienced criminal defense attorney immediately!
An attorney will be able to give you advice about whether you should make any statements to investigators or allow a search of your property. You do not have to give a statement to the police. Any statement can and will be used against you. You do not have to consent to a search — even of your car. Politely refuse. An attorney can also help you make arrangements — if you are going to be arrested — to turn yourself in and avoid the embarrassment of being arrested at work or home. There are many other ways involving an attorney at the beginning of an investigation can benefit you, including, but not limited to, preventing the charges from getting filed by presenting evidence to the police or district attorney on your behalf.
I HAVE BEEN ARRESTED OR CALLED IN FOR QUESTIONING, SHOULD I TALK TO THE POLICE?
You should only talk to law enforcement if your attorney is present. Do not make the mistake of giving a statement to police or investigators by yourself because you think asking for a lawyer will make you look guilty. This is a common misconception and it is important to note that many officers and investigators who are charged with a crime immediately hire a defense attorney. This is because speaking only on the advice of your attorney is the best course of action.
If the police are questioning you, it typically means they do not have enough evidence to arrest you and are hoping you will make a statement that incriminates yourself. An attorney represents your best interests by communicating with officers or investigators without saying anything that is admissible in court. At the same time, your attorney will seek any information that can be used to get your charges dropped or lowered.
If you choose to talk with police without a lawyer present, anything you say can and will be used against you in court. The only statement you should ever make to law enforcement when being questioned is: “I would like to speak to my lawyer.”
HOW MUCH DOES IT COST TO HIRE AN ATTORNEY?
Every attorney determines his or her own fee arrangements. At our law firm in Denton, Texas, we pride ourselves on delivering quality work at a fair price. We will discuss our fees upfront so there will be no surprises for you. Call us today at (940) 382-4711 or fill out the contact form on this page.
HOW DOES BAIL/BOND WORK?
Bail is an amount of money, specified by the court at the arraignment proceeding, that allows for your conditional release from custody. The purpose of bail is to allow temporary freedom from custody to those facing a criminal charge so they may adequately prepare for their case, while also ensuring they return to court for their trial.
Defendants typically hire bail bond companies to post their bail. Through this process, defendants get their money back after showing up in court (minus a premium for company’s service of up to 10 percent). If the defendant fails to show up for his or her trial, then the bail bond company revokes the bond and hires a bounty hunter to find and seize the defendant.
Criminal defense lawyers often work with the court to save their client thousands of dollars by lowering the bail amount or getting the bail requirement waived completely. Attorneys can also negotiate with the bail bond company on their client’s behalf, which may secure a lower premium rate.
WHAT IS THE DIFFERENCE BETWEEN “STRAIGHT PROBATION” AND “DEFERRED ADJUDICATION PROBATION”?
Deferred Adjudication is a type of probation where after you successfully complete the community supervision (probation) period you are discharged without a final conviction “on your record.” Even though you do not have a conviction after successful completion of deferred adjudication, there is still a “record” of your probation. This is important to know when filling out job applications or student loan applications where the question may be “have you ever been convicted.” It is important to remember that anyone with access to the internet can see that you were arrested and placed on probation, including potential employers. If you previously completed a deferred adjudication probation you may be eligible for a “nondisclosure order” under a new law that went into effect September 2003. You can find out more about this below. If you violate a deferred adjudication probation you can be sentenced to any jail/prison term within the range of punishment available for the particular offense.
Straight probation is a type of probation where you are sentenced to a jail/prison time but only do that time if you violate the terms of probation. A straight probation is a conviction nonetheless — even after successful completion of the probationary term.
Not all offenses are eligible for “deferred adjudication” and not all offenses are eligible for “straight probation”. You should talk to an experienced attorney to determine what options are available in your case.
IS THERE ANYTHING I CAN DO IF I LOST AT TRIAL OR AM NOT SATISFIED WITH THE OUTCOME OF MY CASE?
You may be able to appeal your case to the Texas Court of Appeals following a jury trial, or under certain, very limited conditions, if you entered a plea. There is a very small window of time to pursue a direct appeal, however, and usually you must file the Notice of Appeal within thirty days of your conviction.
If your appeal is lost at the Court of Appeals level you can still petition the Texas Court of Criminal Appeals to consider your case. Ultimately, you can even ask the United States Supreme Court to consider your appeal. However, The Texas Court of Criminal Appeals and the United States Supreme Court hear very few cases and the likelihood of your appeal being “picked” is low. The Courts try to limit the cases they hear to those that raise important issues that will likely have a great effect on many legal issues or constitutional rights.
After losing an appeal, there are certain post-conviction remedies that may be available if you were denied a constitutional right or if you believe your lawyer was ineffective. These remedies are available in the state and federal courts, however, there are, again, strict deadlines and rules regarding the filing of such writs.
WHAT DO I DO IF I GET STOPPED FOR DWI?
When you are stopped for a DWI/DUI, the officer will ask you to perform certain tests if he or she believes you have been drinking or using drugs. These tests are generally referred to as field sobriety tests. If you have not been drinking, you may wish to perform these tests. It is important to note, however, that some people have trouble performing these tests even when they are not under the influence of drugs or alcohol.
There are a variety of factors that can impact the validity of the field sobriety tests such as weight, medical conditions, age, etc. While some officers are well trained in the administration of these tests, many officers do not have the training and experience to properly administer them, which can result in incorrect findings. You will not know if the officer who has stopped you knows how to correctly administer the tests. As such, it is better to refuse to perform the tests.
We also recommend that you not consent to any requested specimen collection (blood or breath) unless you are absolutely sure that you are not under the influence of drugs or alcohol. This is because the machines and mechanisms for reading specimen results are not infallible.
Ask to be allowed to consult with an attorney during the DWI/DUI stop. While you do not have a right to consult with an attorney, you cannot be forced to take any field sobriety tests.
Finally, we recommend that you refuse to answer any questions or make any statements if you have been arrested. Anything you say will be used against you in court.
CAN I GET MY CRIMINAL RECORD “ERASED” OR “SEALED?
There are some instances where you may qualify for an “expunction” of certain criminal history. You are most likely to be eligible if you were found not guilty after a trial or if the case against you was ultimately dismissed. An expunction can have the effect of “erasing” your record but there are many factors that must be examined to determine if you are eligible for an expunction. Recent changes in the law have impacted the expunction process and it is important that the attorney you consult with is aware of these recent developments.
If you cannot get an expunction you may still qualify for an “Order of NonDisclosure” if certain criteria are met and after a successful completion of a deferred adjudication probation. Again, this can depend on the type of offense for which you were placed on probation and it is important to talk to a knowledgeable attorney to determine if you meet the required criteria.
I HAVE BEEN ARRESTED BUT THE POLICE DID NOT READ ME MY MIRANDA RIGHTS.
Many people believe that because they were not “read their rights” that their case should be dismissed. This is not true. It just means that some “post-arrest” statements may not be admissible in Court. We see on television or in the movies that the whole case turns on this issue and occasionally it does, but it does not mean the case automatically goes away.
I HAVE BEEN ARRESTED AND THE OFFENSE I WAS ARRESTED FOR HAS BEEN CHANGED TO A HIGHER/LOWER CHARGE.
This happens quite often. Sometimes the police test the weight of a drug at the scene and after it comes back from the lab, it tests as a different weight. (Doesn’t include the container the drug was in, usually). Sometimes the arrested person has prior convictions that enhance the offense to a higher level offense. Sometimes the police don’t charge the arrestee with the proper charge.
WHY DOES THE PROCESS TAKE SO LONG?
The police have to prepare and deliver the case to the District Attorney. The District Attorney has to review each case from every police agency in the County, then decide if they will formally file the case or present the case to the Grand Jury. If the police or District Attorney’s Office is waiting on a lab report for a drug test or a blood test, the process is radically slowed.
WHAT YOU SHOULD KNOW ABOUT THE CRIMINAL TRIAL PROCESS.
Denton Criminal Defense Attorney Joseph Boswell provide vigorous representation for their clients through every stage of the criminal trial process. It is a critical process that demands diligent legal representation from the initial criminal investigation through any final appeal.
WHAT IS AN ARRAIGNMENT?
An arraignment is your first appearance in court, regardless of whether or not you have been arrested or taken into custody. During the arraignment proceeding, you will be formally presented with the charges against you and will be asked what you will plead to the charges: guilty, not guilty, no contest, or mute plea.
In Texas, the arraignment proceeding is also when a judge determines bail, which is a determination of whether or not the defendant should be detained or released until their trial. If the court chooses to detain you, it must also set a bail amount.
WHAT IS A PRETRIAL CONFERENCE?
A pretrial conference (sometimes referred to as a “pretrial motion”) is a legal proceeding that takes place before the actual criminal trial begins and its purpose is to ensure both a fair and expeditious trial. During the pretrial conference, both the defendant and the prosecutor meet before the judge to determine which evidence and witness testimonies will be admissible during the criminal trial.
The pretrial conference is also when your defense attorney may discuss a plea bargain with the prosecutor. This could include pleading guilty to a lesser crime or downgrading the charge from a felony to a misdemeanor.
It is important to note that an overwhelming majority of criminal cases never reach the trial phase, with most ending via a plea bargain during the pretrial conference.
HOW LONG DOES A CRIMINAL CASE TAKE?
The duration of each criminal case varies according to a number of factors such as the complexity of the case, seriousness of the charge(s), the evidence available to the prosecution, and the wishes of the defendant. On average, a criminal case can take anywhere from two months to two years from arrest to the end of the criminal trial
We know that most people are eager to resolve their case as quickly as possible so they can get on with their lives. However, it is always better to allow your defense attorney sufficient time to prepare your case and examine the evidence in order to achieve the best possible outcome in your case.
WHAT HAPPENS AT A TRIAL?
If a plea bargain cannot be achieved during the pretrial conference, then your trial date will be set. In some cases, it is better for a defendant to go to trial than take a plea bargain. This determination will depend on the specific facts and circumstances surrounding the case. An experienced criminal defense attorney will be able to determine the best course of action during your criminal case.
The standard stages of a criminal trial are as follows:
- Selecting a jury (in some cases)
- Opening statements by both the defense and the prosecution
- Prosecution presents the case against the defendant
- Defense cross-examines prosecution’s witnesses and may call their own witnesses
- Closing statements by both sides
Once both sides have made their case, the jury (or the judge if the proceeding is a bench trial) deliberates and returns with a verdict: guilty or not guilty. In Texas, the jury’s verdict must be unanimous in order to convict the defendant. If a unanimous vote cannot be reached, then a mistrial is declared. If a unanimous guilty vote is reached, then sentencing phase of the criminal case commences.
WILL I GO TO JAIL?
County jail or State prison are a very real possibility, depending on the severity of the crime and other factors. An experienced attorney, however, will fight the charges and take steps to keep you out of jail. One of the biggest benefits of hiring an attorney who is experienced in criminal law is that the attorney is more likely to be aware of things like diversion programs that are often available to keep first-time offenders out of jail.
We have over 20 years experience representing criminal defendants and can provide you with the quality representation you deserve.