Criminal Defense FAQ

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What is the difference between a felony and a misdemeanor?

A misdemeanor offense is a relatively minor crime while more serious crimes are felonies.  The difference between the two is often noted in the punishment given.  Punishment for a felony carries more than a year imprisonment, while those convicted of a misdemeanor often serve a year or less of confinement.  Conviction of either a felony or misdemeanor may also carry fines or probation.

Why do some people have to post bond to get out of jail and others don't?

In determining the amount, if any, of bail that needs to be posted, a judge will consider:

  • The type and seriousness of the charges
  • Any prior failures to appear
  • Previous criminal record
  • Connections to the community
  • The probability that you’ll appear in court

What are DUI/OMVI defenses?

These are the standard DUI/OVI evaluations that are used in the field:

Driving Observation Defenses
The prosecutor always relies (sometimes exclusively) on the arresting police officer’s testimony about how a OMVI suspect was driving, including:

  • Very slow speeds
  • Uneven speeds (very fast, then very slow, for example)
  • Weaving from one side of a lane to the other
  • Crossing the center line of the highway
  • Running a red light
  • Hesitation in going through a green light

A good criminal defense attorney will argue that there are many different explanations for these driving behaviors that don’t have anything to do with being alcohol-impaired.

Behavior Observation Defenses
An officer may also testify as to an OMVI suspect’s appearance and behavior when questioned, including:

  • Slurred speech
  • Bloodshot eyes
  • Inappropriate joking or incoherent speech
  • Stumbling or not being able to walk very far
  • Pupil enlargement

Defenses to these observations that don’t have anything to do with being intoxicated may include:

  • Lack of sleep
  • Allergies
  • Contact lenses
  • Stress due to personal circumstances
  • Medications
  • Foods recently ingested
  • Nervousness over being stopped by police
  • Physical impairments

Field Sobriety Test Defenses
When an officer suspects you may be too intoxicated to drive, he or she will likely ask you to perform a “field sobriety test.”  These tests are designed to assess your physical and mental alertness, and can include:

  • Walking a straight line
  • Walking backwards
  • Reciting the alphabet, front wards or backwards
  • Standing on one leg

Officers also, sometimes, rely on what’s called a “nystagmus” test, in which the suspect is asked to shift eye gaze from one side to the other while the officer shines a light in his or her eyes.  The theory is that the gaze of someone who is impaired by alcohol or drugs will be jerky rather than smooth.

The defenses to field sobriety tests are often the same as with behavioral observations.  Medications and lack of sleep can make it considerably more difficult to perform these tests.  Many people also have physical impairments caused by injuries – or simply aging – that make it impossible to perform these tasks under ideal conditions.

Your lawyer may cross-examine the arresting officer in detail as to whether the officer asked if you had any physical impairments id there were particular circumstances that would make it difficult to perform the tests.  Your lawyer may also point out to the jury that many jury members may have similar difficulties performing the tests, such as by asking the jury if they could recite the alphabet backwards under the best of circumstances.

Blood Alcohol Content Defenses
Your attorney will likely subpoena police records on how the breath testing machine operates and was maintained and/ or calibrated.  Your lawyer may also want to bring in expert testimony that the particular breath testing machine the officer used is notorious for malfunctioning.

What are conviction consequences?

If you’re convicted for OMVI, the judge may sentence you to:

  • Pay fines
  • A short jail stay or a driver intervention program
  • A long jail term if you were involved in an accident where you injured or killed someone
  • Probation or a suspended sentence, with conditions on where you can go and actions you’re prohibited from (such as drinking)
  • Community service, working with local non-profit community organizations
  • Drug or alcohol counseling or outpatient or intensive inpatient rehab
  • Install an “ignition interlock” device on your vehicle which prevents you from operating your vehicle if your blood alcohol content is over a certain level, typically .02
  • If your driver’s license hasn’t already been suspended, your state department of licensing may also suspend it for a certain period of time or put restrictions on when and where you can drive

Can I enter into a plea bargain?

In a criminal case, a prosecutor may offer a “plea bargain” but it isn’t required, nor can a defendant demand it.  A plea bargain can be offered by the prosecutor and may include:

  • A reduction in the seriousness of the charge
  • An agreement to reduce the number of charges filed in return for a guilty plea, or cooperation with other cases

Is there a statute of limitation for filing criminal charges?

For all cases except murder, each criminal offense has its own statute of limitation.  The time a prosecutor has to file a complaint varies widely from state to state.