Common Questions about Criminal Defense…


What can I do about a warrant for my arrest because I didn’t go to court when I was supposed to?

A “Bench Warrant” is an order by a judge that someone be physically brought to court because he or she did not appear in court on a day that person’s case was to be heard. It may also be issued if a sentence was not completed, such as fines not paid, community labor not done, or court-ordered classes not finished. This type of warrant may languish in the system for weeks, months, or even years until law enforcement comes in contact with the person for some other reason. At this future time, the person may be arrested on the spot and brought before the issuing court as soon thereafter as possible.

A bench warrant, however, may be what is called, “recalled” and held, or “quashed” (nullified). If the underlying crime is a felony, then the defendant must appear in court for the warrant to be quashed. A misdemeanor warrant can sometimes be dealt with by an attorney representing the defendant, without the defendant’s presence in court.

Depending on the nature of the charges, a skillful attorney may appear in the defendant’s absence and have the warrant recalled and held until the defendant can appear, or quashed.

This means that the warrant will not be in the system and the defendant does not have to worry about being arrested prior to the next appearance date. The attorney may also be able to determine what the judge intends to do once the defendant does appear in court. This can be tricky because the judge will likely not want to commit to his/her plan of action. Most judges do not like to be “felt out” about what the punishment will be for failing to appear, and sometimes will do nothing at all without the defendant present in court. This judge may see the defendant’s sending a lawyer to court for him as a sign of cowardly shirking of responsibility. Another judge may take a more practical view and give a heads up to the defendant as to what to expect to encourage him or her to return to court to proceed with the case. A lot depends on the circumstances of the case – why the court date was missed, or the obligations were not performed.

If a bench warrant has issued in your case, Los Angeles Warrant Recall Attorney Peter Sebastian is experienced in courtrooms throughout Los Angeles and neighboring counties in dealing with warrants and getting them recalled and quashed whenever possible.

What’s the difference between being “arrested” and being “charged” with a crime?

Law enforcement agencies (for example: city police, the county sheriff, or the California Highway Patrol) may arrest you if they have “probable cause” to believe you have committed a crime. They can then hold you for anywhere from a few hours to a few days. Probable cause has no precise definition, but case law has it minimally as a “strong suspicion.”

Law enforcement agencies cannot “charge” you with a crime. That is a formal legal proceeding brought by a government prosecuting agency, like the District Attorney, or City Attorney’s Office. A prosecuting agency is an office of lawyers, and support staff, working for the government, who file a “complaint,” like a lawsuit, against you in court.

For the most serious crimes, you can be held without bail. For the least serious, you may be released “O.R.” which mean on your “own recognizance” which is with an agreement to come to court on a specific date. For all other crimes, bail will be required for your release.  The amount of bail comes from a “bail schedule” and is a predetermined amount for the crime you have been arrested.

If, after investigation, the reviewing detective believes there is enough evidence to prosecute you, he/she brings the case to the prosecutor.  The prosecutor then decides whether to file charges, and what charges to file based on the report and any further investigation the prosecutor might do. If you are in custody, and no charges are filed against you within a couple days, you must be released.

A prosecutor has up to a year or more to file charges.  Prosecutors can also  initiate a prosecution on their own, simply by filing the complaint based on their own evidence, without an arrest or any help from law enforcement. In this case, they will mail you a letter which tells you to appear in court by a certain date. If you don’t appear, a “bench warrant” will issue from the court for failing to appear, and you will be arrested on your next contact with law enforcement. For more serious crimes, police and prosecutors can obtain an arrest warrant from the court.

Weren’t they legally required to read me my rights when they arrested me?

Law enforcement is only obligated to read you your rights if they questioned you while you were in custody. If they didn’t, then no rights needed to be read to you. If they did question you while in custody, and without reading you your rights, what you said can’t be used against you.

What if they violated my rights?

It is a common misconception that if the police violate your rights, you then you can’t be prosecuted for whatever you were arrested for. If you were the victim of excessive force, or suffered some other violation of your rights, it will not affect the criminal prosecution against you. You may have a civil suit against the city or county for damages, but that will not affect the criminal case. The only exception to this is if you were searched illegally (without a warrant or probable cause). Then whatever was discovered during the search cannot be used as evidence in the criminal prosecution against you.

How does bail work?

Bail is set based on a schedule for that crime. It is an amount of money that must be given as security for release from jail during court proceedings. If you show up when required, bail is eventually returned.

A judge controls the bail amount once court proceedings have begun. A lawyer can argue to decrease the amount of bail at a bail hearing. But since a judge has no knowledge of the facts of the case, and with the prosecutor arguing to keep it or even raise it, this is not always successful. Judges usually stick to the bail schedule, or, in felony cases, will follow what is suggested in the probation/pre-plea report.

Bail Bond companies basically loan the money for bail and charge a percentage, usually 10 percent of the total bail amount, which is non-refundable. This amount is far less if you are represented by a lawyer.

How can I post bail for someone who has been arrested?

If a bail amount has been set, you may post it wherever the arrestee is being held and secure his/her release.

What if you are arrested for Federal crimes?

There are far fewer Federal crimes, but the punishments are much more severe. People facing Federal prosecution are typically in a worse situation than state crime defendants for roughly the same offenses. This is because there are fewer alternatives to conviction and sentencing (such as deferred entry of judgment, and other diversion programs), minimum prison terms are much longer, there’s very little good time/work time credit so you have to serve nearly the entire sentence, judges have less leeway in sentencing, and there’s no Federal jail – only prison.

Judges in Federal court decide bail based on an analysis of the flight risk of the defendant. Typically, an interest in property is required, and someone will have to pledge his/her home to secure a release.

If I can get probation, that means no jail/prison time, right?

Usually probation includes some jail time to be served as part of the sentence, although not always. Probation is an alternative to a formal prison or jail sentence where you serve your term and are finished upon release. Probation is a fixed amount of time, usually three or more years, during which you agree to certain “terms” which can include some jail, some community labor, some classes, an order to stay away from particular people, places, refrain from alcohol or drugs, and maybe pay a fine. The terms relate to the offense.

What if you violate probation?

If you do not fulfill your agreement, during the probationary period, probation may be revoked, and technically you can be sentenced to the maximum incarceration for the charged crime. I say “technically” because although that’s a legal possibility, it’s never strictly enforced. Instead, you will get an “offer” from the court as to the punishment (judges will use jail time to force you to live up to your commitment). Then you will have to decide to admit the violation, or have a hearing. The hearing, however, is in front of the judge and proof beyond a reasonable doubt is not required. Therefore, since they are generally not winnable, a hearing is not requested, the violation is admitted, the offer accepted, and new or the same terms are reinstated.

Formal probation is for felonies, and requires having a probation officer with whom you must “check in” monthly. Summary probation is for misdemeanors, and is “informal,” meaning you are on your honor to do what you have agreed to do. Instead of a probation officer, you come to court periodically, for a progress report where proof of progress/completion is presented.

How do lawyers charge for criminal defense?

Criminal defense is usually charged differently than other types of legal work because it is such a unique practice. It is rare to find a defense attorney who charges by the hour, though some do. Normally, a flat fee is charged for the case, depending on at what stage the case is in the proceeding. This is because people suddenly facing criminal charges are in no position to enter into an open ended hourly fee arrangement with an attorney. A criminal defendant has not prepared for a lawsuit, and must know, in advance, what it’s going to cost, in order to marshal what resources are available to get desperately needed legal help.

Because of this, a criminal case has roughly three contractual stages: pre-filing, pre-trial, and trial.

Pre-filing. If there has been an arrest, or there is an investigation underway, but no charges have been filed yet, an arrangement can be made for representation until charges are filed. During this time, an attorney will navigate you through a criminal investigation and possibly negotiate with prosecutors on if, or how, charges might be filed. You will be represented, get the invaluable advice of counsel, and be prepared for what may come, including avoiding a possibly embarrassing and damaging arrest at your home or work.

Pre-trial. If charges are filed, you enter into the pretrial process, which is a combination of investigation, trial preparation, and plea negotiation. The significant elements of this are that you are arraigned, which means you are informed of the charges against you, and your “speedy” trial rights begin. You have a right to have your trial in 30 days if you are in custody on a misdemeanor, 45 days if not; 60 days if you are charged with a felony, after a probable cause determination hearing (preliminary hearing). You have a right to this Pre-lim within 10 days if in custody, 30 days if not. Normally, “time is waived” meaning you give up this right, in order to benefit by more time to prepare your case and negotiate a better plea deal. Because the prosecutor is basically obligated to give over all the evidence against you, this is where a lawyer can assess the case, and figure out your best defense. Being able to understand and appraise the prosecution’s case is crucial, as is a thorough understanding of the rules of evidence as that is the battleground come trial. Most cases end during this stage with some kind of plea agreement. Once all the facts are known, it usually makes little sense to risk a trial, if some kind of reasonable offer can be had.

Trial. Sometimes, usually because the prosecution is over-reaching, no agreeable settlement can be reached. Then a new engagement is necessary for a trial. Trials require an exhaustive time commitment by the attorney for weeks or even months. Therefore, a trial can be very expensive. It would not be smart for a defendant to pay for a trial at the outset that he will probably not need. Defense attorneys realize this and don’t charge for it until it’s necessary.

What is attorney/client privilege and how does it work?

As you have undoubtedly heard on TV and in the movies, “anything you say can and will be used against you in a court of law.” This is true, so don’t talk about your situation with anyone… except an attorney.

You have a legal right to be represented by an attorney. This right would be useless, however, if you couldn’t tell that attorney everything, including things that might incriminate you. So there is a “privilege” that communication between you and a lawyer cannot be used against you. This is true as long as you make a reasonable effort to keep it confidential. So a conversation obtained secretly and without your knowledge – for example, through a recorded phone conversation – could not be used as evidence of your guilt. On the other hand, if you have a friend with you when you talk to the lawyer, the privilege is “waived” and cannot be claimed, if, for example, the friend repeats what he heard. Likewise, what you tell a lawyer isn’t privileged if you then tell someone else.

You do not have to hire the lawyer for this privilege to apply. As long as you are seeking legal advice, the communication is protected.

What’s going to happen with my criminal record?

A conviction is a public record. As long as you do not get sentenced to state prison, however, your record can usually be helped through a process called expungement. You cannot be on probation or have an open case. Some felonies can be reduced to a misdemeanor, and expunged. The process is relatively simple and an attorney can help you through it once your sentence is served, or your probation is terminated.