Frequently Asked Criminal Defense Questions

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Do I ever have to consent to allow police to search my home or car?

You never are required to consent to a search by the police. Although you may sometimes be threatened by the thought of being detained by the police until a search warrant is procured, you have the absolute right not to give consent. It is almost never a good idea to give consent to search, despite what law enforcement may say to convince you otherwise.


If I'm arrested, do the police have to read me my rights?

Contrary to popular belief, when a person is arrested, the police are NOT required to "read you your rights." The reading of the "Miranda" warnings (right to remain silent, right to an attorney, etc.) and the obtaining of the suspect's waiver of those rights is required ONLY in order for the prosecutor to later use the statements of the accused against him at trial. Miranda warnings are, moreover, only required when you are in police custody AND they want to ask you questions which are designed to elicit an incriminating response. If, for example, you voluntarily go to the police station to make a statement (ie, you're not "in custody", or if, while you are in custody, you blurt out statements (not in response to a policeman's question), these statements come in regardless of a lack of Miranda warnings and waivers. Never agree to speak without first consulting a lawyer. I guarantee that no police officer would if (s)he were asked to.


If I refuse to give a statement to the police concerning my potential involvement in an offense, can I be charged because of my refusal to cooperate?

Absolutely NOT. You cannot be arrested or charged simply because you have exercised your Fifth Amendment right not to give testimony against yourself. Many times the authorities will use this approach to scare an individual into waiving their rights and giving a statement out of fear that they will be placed in jail. The police may threaten you with this, suggesting that you will have a high bail if you don't cooperate, or that a lack of cooperation will result in your arrest. They may also suggest that cooperation of this kind will result in leniency. Not true. Actually, the judge cannot set a higher bail because you did not cooperate with the police, and when there is justification for an arrest, one will be made. Giving statements usually just ensures that your arrest will more likely result in a conviction. Thus, the police are quite creative in their attempts to persuade suspects to give "voluntary" confessions. It makes the prosecutor's job much easier.


What Does A "Grand Jury" Do In A Drug Case?

A grand jury is a group of people called together by the prosecutor to gather information about suspected criminal activity by listening to testimony from witnesses and examining documents and other evidence. At the end of the proceeding, the grand jury decides whether there is enough evidence to put the defendant on trial for the drug charges. Grand juries are more likely to be convened in connection with more serious and complicated drug crimes, like conducting a drug-related criminal enterprise.


How Does The Prosecutor Decide Which Drug Cases To Pursue?

The first thing the prosecutor looks for is a legally sound case, or one without any obvious defects that will get it thrown out of court, such as violations of the defendant's constitutional rights or destruction of evidence crucial to the defense. The prosecutor next decides if there is enough evidence, with regard to both the quantity and the quality thereof, to make conviction probable. Finally, the prosecutor decides if prosecuting the case fits in with the office's policy objectives, or whether a more informal disposition, like drug counseling or treatment, may be in order.


Can A Defendant Plea Bargain In A Drug Case?

Plea bargaining, which involves negotiating with the prosecutor to get the charges reduced and the punishment minimized, is allowed in drug-offense cases. For example, a person charged with three separate drug charges -- possession, possession for sale, and transportation of drugs -- may be able to negotiate the charge down to simple possession in exchange for an agreement to plead guilty to that charge. The prosecutor agrees to plea bargains in appropriate cases because the government simply does not have adequate resources to try every case, so both sides benefit from the bargain.


What Defenses Can Be Raised In Drug Cases?

The most common defense raised in drug cases is to challenge the search and seizure that resulted in the police finding the drugs. If the police violated the defendant's Fourth Amendment search and seizure rights, the court will suppress, or throw out, the drugs as evidence. The prosecution will then have far less evidence to prove the case beyond a reasonable doubt and the case could even be dismissed.


Can A Defendant Be Acquitted If He Or She Was On Drugs When The Crime Was Committed?

Defendants who commit crimes under the influence of drugs sometimes argue that their mental functioning was so impaired that they should not be held accountable for their conduct. Generally, however, voluntary impairment does not excuse criminal conduct, since people know or should know that drugs affect mental functioning, and they should therefore be held legally responsible if they commit crimes as a result of their voluntary use. An exception to this rule may exist in cases involving a crime that requires "specific intent", in which the offender must have intended the precise result that occurred but arguably could not have formed that intent in his or her drugged state.


Do I Need A Lawyer To Represent Me Even If I Am Innocent?

Every criminal defendant needs an attorney. Innocent defendants are perhaps in even greater need of zealous representation throughout the criminal process to ensure that their rights are protected and that the truth prevails. Even innocent people end up in jail, so the best way to prevent that miscarriage of justice is to employ the services of a seasoned veteran of criminal defense law, particularly one with experience defending against drug charges.


If I Simply Intend To Plead Guilty, Why Do I Need A Lawyer?

Even if you are guilty of the drug crime with which you are charged, it is imperative that you seek the advice of experienced counsel so that you can minimize your sentence and maximize your opportunities to move ahead toward a brighter future. Criminal defense attorneys are needed to equalize the balance of power between the defendant and the prosecution and to ensure that the constitutional rights that are guaranteed to all criminal defendants, whether guilty or not, are preserved.

Additional Resources

Law Offices of Steven J. Topazio

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