Criminal Law Frequently Asked Questions
How do I get someone out of jail?
When a loved one ends up in jail, many people do not know what the next steps are. How to get someone out of jail depends on certain fact and situations. A typical arrest happens within the county that the crime occurs. If that is the case, then getting someone out of jail is a fairly simple procedure. Legally, the court system has up to 48 hours to present the arrested person to a judge to get a bond amount. A bond amount is set based upon several factors but the main factor is what type of offense the arrested person is being charged with. Once the bond is set, the arrested person has two different options. First, they may pay the bond themselves in full. This option is beneficial in that the arrested person can receive the full amount paid back at the end of the legal proceeding. The second option is to get a bondsman. Typical bondsman will charge a fee. That fee is normally ten percent or more of the bond that was set. Then the bondsman will post the full amount of the bond on behalf of the arrested person. The downside to using a bondsman is that the arrested person cannot get the ten percent back at the end of the process.
A larger problem presents itself if someone is arrested in a different county than the arrest warrant was issued in. For example, if someone has an arrest warrant in Tarrant County and is arrested in Dallas County, the process is much more complicated to get that person out of jail. To continue with the example above, a bond amount will not be set while the person is in Dallas County’s custody. Rather, Dallas County must notify Tarrant County that the person is in their custody. Once Tarrant County is notified (a process that can take several days), Tarrant County has two full weeks before they have to come to Dallas County to pick the person up from custody. Tarrant County then must transport the accused person back to Tarrant County jail where they have up to 48 hours to get that person before a judge to get a bond set in the case. In the above example, the transport should only take a day, but imagine if the accused person was arrested in El Paso County or even a different state. The process of getting the person out of jail can take several weeks and can be a very difficult and frustrating time for both the accused and his or her family. Hiring a good criminal law attorney could potentially speed this process up and allow for the accused to get in front of a judge in the proper county quicker than if they do not have an attorney fighting on their side.
How do I find out if I have a warrant for my arrest?
If you suspect you have a warrant out for your arrest, call an attorney immediately. If an investigation has already gotten to the arrest warrant phase, you need someone to help guide you through the criminal justice system. Figuring out if there is a warrant for your arrest is also a lot easier for an attorney than for an individual. If an individual calls the jail in their county or city, it is likely the officers will say they can not give the information out over the phone but can if the person comes to the jail. DO NOT GO TO THE JAIL. If you arrive at the jail and there is a warrant out for you, then you will be arrested. Police officers can use these tactics in an investigation to get someone into custody. An attorney can reach out to the jail or the warrant division on your behalf and can learn if there is an active warrant out for your arrest. This is a better situation for you because the jail or warrant division will answer honestly if an attorney calls and allow an attorney to set up a time for you to come down to the jail to turn yourself in. If you have this time set up you should be in and out of jail quickly (4-6 hours).
If you are worried you have a warrant for a ticket you received, you can go on the website of the city or county that issued the ticket to you. Typically, these websites have an active warrant list on them for you to be able to search. If you do have a warrant based on a ticket, typically you can pay the amount due or work out a payment plan with the Court, then the warrant will be lifted without the need for a jail visit and bond amount.
If the police forget to read me my rights will the case be thrown out?
The simple answer to this question is no, your case will not be thrown out. Failure of a police officer to read you your rights does not affect the case as a whole. What it does affect is the State’s ability to use statements made by you while under arrest. For example, let’s say a person is arrested and the officer does not read the person their rights. At the police station, the arrested person makes a full confession to the officer. During trial, the State tries to use that confession to convict the arrested person. The defense attorney needs to prevent those statements from being heard by the jury or used as evidence by stating that the arrested person was not properly advised of their rights and the statements made by the arrested person are not allowed to be used against that person. This objection should be successful and that confession should not be allowed into the trial and used to help convict the arrested person. On the flip side of that, if the arrested person is fully read their rights and they choose to make a confession, everything they say can and will be used in a trial against that person.
It is also important to advise against speaking to the police pre-arrest. Miranda rights are only applicable if a person is under arrest. If an officer begins questioning you and has not placed you under arrest and you state something, those statements can and will be used against you. A person in this situation does not have an objection based on failure of the officer to read them their rights because they were not under arrest at the time the statements were made.
What is the difference in deferred adjudication and probation?
Both deferred adjudication and regular probation (or straight probation) are types of probation. Both require a person to plead guilty. Both place the person under the control of the probation department. Both require probation fees to be paid. There are several differences between the two that a person must be made aware of during the plea bargain phase of any charge. It is helpful to see the differences outlined below in the significant areas where they differ.
Conviction: Regular probation will always result in a final conviction on a person’s record. Deferred adjudication does not result in a final conviction. The arrest is on a person’s record but they have never been convicted of that crime.
Orders of Non-disclosure: Deferred adjudication allows for a person to apply for and receive an order that prevents private persons from seeing that crime when they are running a background check. The State of Texas will still be able to see it but, for example, your next door neighbor or even your employer, depending on who your employer is, will not. Regular probation does not allow for this and anyone can see the conviction on your record. However, due to a new change in the law, a person who was placed on regular probation for a first DWI can apply for and receive an order of non-disclosure under certain conditions.
Termination of probation early: Both regular and deferred probation allow a person to ask the Court to have their probation terminated early. However, there is a very large difference in the timing of this request. On deferred probation, a person is eligible to have their probation terminated the second they successfully complete the terms of their probation. Meaning, once they pay the fines, do the community service hours, and complete any classes ordered by the judge. This can happen in 1 day or 1 year. Once those conditions are completed, a person can start asking the Court to let them off probation. With regular probation, however, the rules are different. The State legislature determined that a person on regular probation must serve at least 1/3 of their sentence before they can even start trying to ask the Court to let them off of probation early. At the 1/3 mark a person can ask the Court, but the Court does not have to consider the request until at least 1/2 of the time has been completed by the probationer.
Revoking Probation: This is one area that many people do not understand when taking a plea for regular or deferred probation. It is something that everyone needs to understand because it can drastically affect you later on. When a person is placed on probation, one requirement of probation is that the person does not commit any crimes during the probation period. At this point, many of you are thinking that is completely obvious, but what about something like a speeding ticket? Do you think that that will affect your probation? The truth is, it absolutely can. A speeding ticket is an offense and a violation of your probation, which makes your probation eligible to be revoked. Most of the time, probation officers will not revoke based solely on this, but it has and can happen. So what now? Well, that depends. On regular probation you can be sentenced to any amount of time up to the period of time you agreed to in your plea. That sounds confusing, so let’s look at an example. A person has plead guilty and is sentenced to 2 years in jail probated for 5 years. Meaning, they are on probation for 5 years. Then they do something to get their probation revoked. That person could receive any amount of time in jail up to 2 years. Deferred probation is a whole different story. A person who is on deferred can receive any range of punishment up to the statutory maximum. For example, a person is placed on deferred probation for a period of four years on a crime that is a third degree felony. A third degree felony has a punishment range of up to 10 years in prison. The person is then revoked on probation. That person could receive up to 10 years in prison.
Can shoplifting charges be sealed?
This is a very complicated question. Shoplifting is theft. The crime will be charged based on the value amount of the things that were stolen. If a person steals when they are a juvenile, those records are eligible to be sealed. If a person steals an amount under $100.00 they will be charged with a Class C misdemeanor. If the person is given deferred adjudication, they will be able to seek an expungement of their record. An expungement allows the person’s record to be completely cleared of that theft. If a person commits any other level of theft, and given deferred probation they can receive an order of non-disclosure but that does not prevent the State of Texas from seeing the crime when running a background check on the individual.
What happens after a person is arrested?
Well that depends. Usually, in a typical case, they are taken before a magistrate and a bond is set in their case. They then must get a bondsman or pay a cash bond. Once the bond is posted on their behalf they are released from custody. They will be given terms and conditions of bond, typically by both the magistrate judge and the bondsman. These must be followed. Their first court date, depending on the county and court, will be around a month after they are release. This is initial appearance and can be waived IF they have an attorney. After the initial appearance, they will continue to get court dates until their case is resolved.
Does a person have to speak to the police after being arrested?
No and you shouldn’t. You do have to give them basic information, like your name. Anything else you say in custody WILL be used against you in a trial on the matter.
What is an arraignment?
An arraignment is the initial court appearance. It is the time where a magistrate or justice of the peace judge ensures that a defendant understands the terms and conditions of bond. It is also a time when they can ask the Court for an appointed attorney if they need one. A form will be provided to them by the Court and if they qualify should be hearing from that attorney within 48-72 hours. This appearance can be waived if the defendant has opted to hire their own attorney.
What is the process after criminal charges are filed in court?
That depends on if the charge is a misdemeanor or a felony and what you mean by filled. It varies from court to court and from county to county.
What is a pretrial conference or pretrial hearing in a criminal case?
These are where a defendant can meet with the district attorney and receive a plea offer to avoid going to trial.