What Do Criminal Defense Attorneys Do?

Ever since I announced to my friends and family that I was going to be a Criminal Defense Attorney there has been one nagging question, “How can you sleep at night defending criminals?”  In this short article, I would like to answer that question and at the same time possibly give you some insight on how you might select an attorney, if you ever need one.

First, I sleep just fine!  When I see a client who has been arrested and charged with a crime, I don’t see a criminal.  What I see is someone’s son or daughter, mother or father, or brother or sister.  My client has people that care about them and their loss of liberty (freedom) will cause those people great pain.  So, I treat my clients like they are family.  I take care of them like they are my own brother or sister.  That means giving them the respect they deserve, telling them the truth, and not sugarcoating the risks and challenges they will face through the difficult legal process.  It means helping them weigh the risks and rewards of each decision.  Not every case ends with a not guilty or dismissal, but I can sleep at night knowing that I did my very best to give my client the opportunity to stay out of jail, prison, and possibly stay in-country.

One of the things people who criticize criminal defense attorneys don’t seem to understand is that in many ways we are just Constitutional Lawyers.  We protect the 4th, 5th and 6th Amendments.  We keep the police from stopping and searching people without probable cause or at least reasonable suspicion.  We prevent the prosecutor from using our client’s coerced (involuntary) statements against them.  And, we make sure that the police and prosecutor can’t manipulate our client into making decisions that could take their freedom.  I think everyone can agree that there are dangerous people out on the streets, but the minute we give the police and the prosecutors free rein to ignore the Constitution, we open ourselves up to a type of tyranny and corruption that destroys communities and nations.

In closing, what should you look for in a Criminal Defense Attorney?  (1) Look for passion and enthusiasm to fight for your rights. (2) Money is important, but it shouldn’t be the only thing on your attorney’s mind. (3) Look for someone who treats you with respect and can communicate with you and your family.  (4) Finally, look for someone who has the respect of both prosecutors and the judges. 

Should You Take The Breath Test?

Let me start as I have all of these discussions on the subject of DUI’s by saying, “Don’t Drink and Drive!”  Now with that said, should you let the police test your breath for alcohol.  The short answer is NO, but let’s take a closer look at why.

Why a breath test?  Alcohol intoxication is legally defined by your blood alcohol concentration (BAC) level.  A BAC of .08 or above is the only scientifically objective way to prove someone is intoxicated.  The most accurate method of testing would be to take a blood or urine sample, but these are impractical for obvious reasons.   The less invasive solution is to measure the ethanol level of a person’s breath.

How does it work?  Scientists found a direct correlation between the amount of ethanol in a person’s breath and the amount of alcohol in their blood (BAC).  In Oklahoma, the police use the Intoxilyzer to take this measurement.  The Intoxilyzer uses infrared light and a very small computer to interpret and calculate the BAC from a person’s breath.

Field Test or Jail Test?  Breath tests administered at the scene are usually not admissible in court because they are not as reliable.  This means that police have to administer the test when you get to the jail.  This can cause all sorts of issues that can make the test less reliable.  What you had to eat, the machines service log, and even if you burped prior to the test can bring into question the validity of the measurement.

So, should you take the breath test?  Our opinion is, Say No Thank You, and refuse the test.  There is no upside for you.  Without the breath test the police will have only their observations and the Field Sobriety Test.  This is much easier to fight than a number from a machine.

Interesting Legal Issue…if you did take the test, there is still hope.  The Intoxylizer evidence has been found unreliable in some at least one State.  The reason is that the manufacturer can’t prove the accuracy of their device.  It is only a matter of time before the Intoxilyzer will be challenged here in Oklahoma.

Last thought…Don’t wait…Hire an attorney right away, especially if you have a valid driver’s license.  There are several things a good DUI attorney can do for you, but every minute you hesitate places you at a greater disadvantage.

Field Sobriety Test

What is a Standardized Field Sobriety Test? As I said at the beginning of the last article, do not drink and drive! With that said, once you have been stopped, the officer may ask you to step out of your vehicle and perform a Field Sobriety Test (SFST). Remember you can refuse to take the test! The SFST consists of three parts:  Heel-Toe-Turn, Single Leg Balance and the Horizontal Gaze Nystagmus.

The Heel-Toe-Turn Test

During this test you are asked to walk 7/8 steps in a straight line placing your heel against the previous toe and you must keep your arms at your sides.  At the end of the steps, you are supposed turn and walk back to your original position.  Any wavering, loss of balance, or raising of your arms could constitute failure of this test.  Obviously, any current or old injuries may impact your ability to perform this test; also, uneven roadway, gravel or your footwear can make it difficult to perform this test. When asked to perform this test 4 out of 10 sober individuals gave indications that may get them designated as intoxicated.

One Leg Balance Test

This test is exactly what it sounds like. You will be asked to balance on one foot while keeping your arms at your sides. Just like the last test your ability to pass this test will have a lot to do with how level the road is beneath your feet, gravel and also how close you are to stationary objects (it is very hard to balance in the dark with no buildings or trees to give you adequate depth perception.)  In the end, 4 out 10 sober individuals will fail this test

Horizontal Gaze Nystagmus

The final test is an eye movement test. The officer moves a pen right to left in front of your face and watches how smoothly and evenly your eyes move. We could spend three whole articles on how flawed this test is; instead, let me just say that without the other two tests officers were only right 40% of the time in determining sobriety.

What should you do?

It is this author’s opinion that the SFST is only reasonably accurate when all 3 tests are administered correctly by one officer.  Because there is so much room for error, it just does not make sense to agree to take these tests.  Just say No!

Avoiding a DUI Traffic Stop

Let me state the obvious, if you're drunk, then don't drive.  You certainly don't want to hurt someone else or yourself in an accident.  You also don't want to get arrested, spend time in jail, lose your license, pay huge fines, and perhaps even lose your job.

With that said, at one time or another almost everyone has had a few beers and gotten behind the wheel of a vehicle.  The problem is that once you are stopped even a hint of alcohol on your breath could get you arrested for DUI.  It is my experience that most people do not realize how little it takes to exceed the legal standard of 0.08% blood alcohol content (BAC).  For the average sized person, three or four drinks could easily place them in the "drunk-driver" category.  However, based solely on a police officer's claim that you were "impaired," even though your BAC was below the legal threshold, you can still be convicted as a drunk driver.

How do you avoid being caught up in a DUI nightmare?  Well, you could avoid drinking and driving altogether.  However, if you choose to drink and drive, there are a number of things you can do to lessen the likelihood of being stopped and charged with a drunk-driving violation.

Your Vehicle - Police officers need probable cause to make a traffic stop.  That cause could an observable defect in the vehicle’s safety equipment.  How can you lower your risk?  Once every three weeks turn on all the lights on your vehicle.  Check your headlight, taillights, brake lights and turn signals.  Get broken windshields fixed, and don't forget the license plate light, because this is a favorite of law enforcement!

Your Driving - Obviously, violating traffic laws is a good way to attract the attention of police officers. Speeding, failing to use signals, or rolling through a stop sign are controllable situations.  Making sure to wear your seat belt.  Also, avoid driving through areas where there are a lot of bars late at night.

You've Been Stopped, Now What? – Pull over to a safe place.  Immediately roll down your window and vent the passenger compartment.  Be courteous, but admit to nothing.  This cannot be emphasized enough.  Any admission, however inconsequential, will be used against you. 

In the next edition, I will discuss whether you should agree to take the Field Sobriety Test.  Remember to contact an attorney as soon as possible.  Until next time, be safe out there! 

What happens after you are arrested?

Let’s start at the beginning:  You, or a family member, are arrested and taken to jail…What happens next??  The first step in the criminal justice system is called video arraignment.  It takes 48 to 72 hours to be arraigned.  Through video technology you will be brought before a judge who will tell you what you are being charged with, what your bond amount is, possibly appoint the Public Defender, and give you your next court date.  If you are without papers you will not receive a bond, unless you have hired a private attorney who specifically asks the judge to set a state bond.  The next step depends on whether you are charged with a misdemeanor or a felony.  A misdemeanor is a less serious crime and carries a maximum sentence of one year in Tulsa County Jail.  If you are without papers, you may still be allowed to stay in the country if the criminal misdemeanor case is handled properly.  A felony is much more serious because it potentially carries multiple years of prison incarceration, as well as almost guaranteeing deportation for anyone without citizenship.

If you are charged with a misdemeanor, then your next court date will be approximately three weeks later and it is called a Status Conference (STC).  This is when your attorney will discuss with an Assistant District Attorney (ADA) what they would offer you as a penalty if you were willing to plea guilty.  If you accept the offer, and it does not include jail time, you will be released, or transferred to ICE if you are without papers.  If you choose to fight the charges, then an Allen Hearing date will be set approximately four weeks into the future.  This is the date by which the DA’s office must give your attorney all the evidence they have in their possession.  If you are not guilty or the plea offer is not reasonable, it is necessary to set this date to force the ADA to take a closer look at the evidence.  Sometimes a better plea offer is worked out prior to the Allen Hearing date.  If the ADA provides all the evidence by this date, then a Trial Date will be set approximately six to eight weeks out.

If you are charged with a felony, then your next court date will be a Preliminary Hearing and will be approximately three weeks after arraignment.  During this time your attorney will be given the opportunity to negotiate on your behalf for a plea arrangement.  If an agreement is made between you and the ADA, then the Preliminary Hearing will not be necessary.  So, what is a preliminary hearing?  It is sort of a mini-trial where the DA’s office is given the opportunity to call witnesses and produce evidence, and they must show that more likely than not they can prove all of the elements of the crime, which you have been accused.  In most cases, this is not a very difficult task, because although your attorney is able to cross-examine their witnesses, you and your attorney are not usually allowed to call witnesses of your own or mount a specific defense.  If the ADA is unable to prove all of the elements, then the case will be dismissed.  This happens very rarely, but it does happen.  If they prove the elements, then you are bound-over for District Court.  This is just a fancy term for a Status Conference to decide whether you are going to accept a plea agreement or go to trial.  This will occur about one week after the Preliminary Hearing.  If you decide to fight the charges all the way to trial, it will take approximately nine months.

There are three things to remember.  (1) Nothing happens as quickly as you would like it to, especially if you or your loved one is in jail.  Be patient! (2) You deserve to have answers.  Find an attorney that will take the time to answer all of your questions.  It is important that you make well-informed decisions.  (3) Don’t let your attorney talk you into pleading guilty to the first offer.  Hire an attorney who is not afraid to take your case to trial.  Even if you just want to get it over with, an attorney who is willing to fight will almost always get you a better deal.

PROTECT YOUR RIGHTS

In order to protect your rights, do not consent to searches or give statements to the police.  If you are stopped or the police knock on your door; remain calm, don't offer resistance, be polite, and let the officers know that you do not consent to any form of search and you will not make any statements without your attorney present.

Be careful of police tactics that attempt to trick, bully, or coerce you into talking or consenting to a search.  They are not going to go easier on you if you give up your rights.  They are not going to let you go if you cooperate.  The charges and the penalties will not be less if you admit to something.  Ask for an attorney and shut up!  That is your best course of action.