RANDALL L. CABLE,               ATTORNEY AT LAW                 

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    I am providing herein some Frequently asked Questions regarding individuals and their rights that arise in the criminal law arena.  Please understand that the following is of a general nature and each person's particular fact situation can  have a bearing on the statements herein.  Case law, decisions by the Courts in other cases, is constantly changing the rights of the individual and the police.  IF YOU HAVE A SPECIFIC LEGAL PROBLEM, YOU SHOULD CONSULT WITH A LAWYER REGARDING YOUR SPECIFIC FACT SCENARIO.

WHAT TO DO WHEN STOPPED BY AN OFFICER

    The Courts have determined that an automobile can be stopped for a variety of reasons.  It may be for speeding, erratic driving, missing license plate, cracked windshield or other defects.  A person on foot may be detained for questioning under certain circumstances.  When stopped by a police officer, whether you are driving an automobile, a passenger in a vehicle, or on foot you must stop and answer the officer's questions as to your identity, drivers license and/or registration.  You should never make any admissions of wrong doing to the officer. Do not volunteer information that might incriminate you.   The Court is often faced with determining whether statements made against one's interest are given in the course of the officer's routine questioning or made as the officer pursues definite criminal investigation.

WHAT IF THE OFFICER BELIEVES I HAVE BEEN DRINKING?

    Often a police officer will stop a vehicle for routine causes such as speeding or other traffic violation, equipment deficiencies or such as discussed above.  Upon stopping the vehicle and talking with the driver, the officer may quickly come to a conclusion that the driver has consumed alcoholic beverages.  In most jurisdictions, it is not against the law to have consumed alcohol and then drive a vehicle.  All states have prohibitions against operating a vehicle under the influence of alcohol or drugs.  In Indiana the presumption of intoxication is a breath test reading of .10% or greater.  Regardless of the reason for the stop, the officer can ask the driver to exit the vehicle and perform field sobriety tests at the scene if the officer has reasonable suspicion that the driver is under the influence.  Often the officer is looking for the odor of alcohol on the person or breath of the individual; red, watery or bloodshot eyes; slurred speech; staggering or difficulty in getting out of the vehicle; swaying or stumbling or leaning on the vehicle during questioning; failure to respond to the officers directions; and observation of alcoholic beverage containers in plain view in the vehicle.

    The officer has the right to request that you go to a test site and submit to a test to determine the presence or amount of alcohol.  A portable test unit may be used at the road side before being taken to the test location.

    In Indiana if you refuse to submit to this chemical test your driving privileges may be revoked for one year based on the refusal, even if you were to later be acquitted of the operating charge.  Generally, the Courts have determined that you do not have the right to an attorney being present during this test taking.  Although Miranda warnings should be provided before extensive questioning as to one's consumption of alcoholic beverages. 

    If you are charged with Driving under the Influence, you should consult with an attorney immediately.    

CAN THE POLICE SEARCH MY PERSON OR VEHICLE?

    The police have the right to perform a precautionary pat-down search of an individual for weapons.  Normally, probable cause (a legal concept of good reasoning for belief that criminal activity has or is occurring) must exist for the officer to search an individual further.  Whether it be an individual on foot or a vehicle, if the officer sees what he reasonably believes to be illegal goods or weapons in plain view, then the officer has the right to seize that which is in plain sight.  When an officer has stopped a vehicle he can ask the owner/driver for permission to search the vehicle.  You do not have to give permission for the search.  If the officer believes that a search is warranted, there are methods for him to obtain a Search Warrant.  If the officer receives this permission, the vehicle, including glove compartment, trunk and all areas of the vehicle may be searched.  

WHAT IS A SEARCH WARRANT?

    A search warrant is a document signed and issued by a Judge authorizing the Police to search a particular location or individual in a quest to obtain evidence of criminal activity.  The officer first presents to the Court a request for the warrant usually in the form of a probable cause affidavit wherein the officer recites his determination that a warrant is necessary and likely to result in discovery of sought evidence.  The Court usually holds a hearing for presentation of this evidence necessitating the issuance of a warrant.  Once satisfied, the Judge then signs the Search Warrant authorizing the search.

WHAT IS AN ARREST WARRANT?

    This is similar to the procedure for a search warrant.  However, instead of asking for permission to search, the officer is presenting evidence of probable cause to believe that a particular individual has committed a particular offense.  The Court will also conduct a hearing and if probable cause is found, reasonable belief that the person committed the alleged offense, then a warrant will be issued for that individual's arrest. The Judge often will suggest the initial bail amount.

CAN AN OFFICER SEARCH MY HOME WITHOUT A WARRANT?

    Normally, a search warrant is necessary to authorize a search of a home or other dwelling.  In certain emergencies your home may be subject to search without a warrant or your consent.  Case law generally describes situations where belief exists that someone may be trying to destroy or remove evidence.  If the police have entered your residence based on consent to enter being given or other valid reasons to be present and they observe illegal goods that are in plain sight, then that immediate area may be searched.  If you are being taken into custody in your home and the officer does not possess a search warrant, the officer is still permitted to search the immediate or limited area in which you are at the time of the arrest.  Other rooms, and possibly other areas of the room you are in, are off limits.  Certain situations would allow the officers to search the entire residence looking for other suspects but not necessarily evidence.

WHAT RIGHTS DO I HAVE IF DETAINED BY AN OFFICER?

    When you are detained, that is your freedom to leave or move about is restricted or forbidden, you have certain rights.  You have the right to remain silent and not answer any questions.  Anything that you do say may be used against you.  You have a right to an attorney to be present while you are being questioned.   If you cannot afford a lawyer one will be provided to you.  If the officer believes that you are subject to a criminal investigation, he has a duty to advise you of these rights.  These are what we typically refer to as Miranda Warnings.  In most situations you do have to provide your name, address, and possible identification such as drivers license if requested.  Any detention of you has to be reasonable in duration. You should discuss with your lawyer any questioning by the police so that a determination can be made as to admissibility (whether statements may be used in Court against you). 

IF I AM ARRESTED DO I NEED A LAWYER?

    If you are arrested and charged with a crime, particularly a serious crime, you should consult with an attorney immediately.  Criminal charges and convictions can carry jail sentences, monetary assessments, restrictions on your rights and future rights.  A lawyer is trained and often has vast experience in knowing what elements constitute an offense and can determine whether there are defenses that may be raised on your behalf.  Local or State Rules may restrict a lawyer as to possible defenses if they are not raised in a timely manner.  A lawyer can advise you or your family or friends as to the nature of the charges, penalties and bail process.

WHAT IS BAIL AND HOW IS IT SET OR CHANGED?

    You have the right to be subject to bail except in certain situations.  Bail is the setting of an amount of money or other security deposited with the Court to ensure that you will appear in Court as scheduled.  It is set according to a schedule.  The factors used and the amount of the bail may vary from jurisdiction to jurisdiction.  Generally, these factors include your prior criminal history, prior failure to appear in Court including traffic cases, your ties to the community, your employment history, whether you own your home, whether you have a telephone in your name, and whether you are a risk to flee or a risk to the community based on the alleged offense.  Usually the more serious the pending charge and weighted responses to these factors will result in a higher bond amount.  

    For many, your bond may be an O.R., or release on your own recognizance based on a promise to reappear because a Judge or Bail Commission believes you will reappear as ordered.  Otherwise, bail can be a set amount that is paid into the Court through the Sheriff or Clerk in which case if you appear and the case is concluded you would receive back all but a administrative amount of the money posed.  Bail may be in the form of a surety in which a bondsman posts the bond and you pay a percentage of the amount of which you get nothing back.  If you fail to appear at a scheduled court hearing your bond can be revoked and forfeited.  If a bondsman is involved, the bondsman then will attempt to locate you and whoever posted the bond will be charged the full amount of the bond.  

    Often at the outset of a case, your lawyer will attempt to get your bond reduced or changed based upon the filing of petitions with the Court.  A hearing may be set by the Court to review the bond or release conditions.  The Court can set certain restrictions or conditions upon the defendant in addition to the amount of the bond.

WHAT HAPPENS AFTER THE ARREST?

    After an officer arrests a person, the officer consults with the Prosecutor or State Attorney, depending on jurisdiction concepts, and files charges against the Defendant.  The  Defendant then is given an Initial Hearing or Arraignment, wherein the charges are presented and certain rights are given.  This should occur within 2-3 days following arrest.  The Court in addition to advising of the charges pending and rights, such as right to speedy trial, right to jury trial, right against self-incrimination, will determine if the individual will retain private counsel or qualifies for a public defender.  The  Court may also look at the bond amount, including whether to raise or lower the amount.  A pre-trial conference then is scheduled.  In some jurisdictions the Court may set a preliminary hearing wherein the State must present minimal evidence showing a reasonable suspicion of criminal conduct to justify the case going forward.  Following any procedural hearings, the matter finally reaches a trial setting.  Trial may be before the Court, wherein the Judge alone determines guilt or innocence, or before a Jury, wherein citizens chosen determine the outcome.

WHAT IS A JURY TRIAL?

    A jury trial is the process where a number of citizens from a community are called in to serve jury duty.  Each is questioned as to their qualifications to serve on the jury.  Sometimes the Trial Judge will do all the questioning, however, usually the Prosecutor and the Defense Attorney will take turns questioning prospective juror.  Each side has right to strike, or excuse as jurors, anyone that meets certain statutory criteria, i.e., for cause.  Each side gets a certain number of preemptory strikes, meaning each can excuse a prospective juror for whatever reasons.  The jury then hears the case and following receipt of jury instructions and closing arguments by counsel, retire and deliberate the guilt or innocence of the defendant.

WHAT IS PLEA BARGAINING?

    Most jurisdictions are overloaded with cases.  If every case that was filed actually ended up being tried, the backlog of cases could be enormous and the delay rather lengthy.  The Prosecutor and the Defense Attorney will determine the strengths and weaknesses in the case and particular beliefs as to how the Court may react to the specifics of that case.  Negotiations take place wherein an agreement is reached regarding the outcome of the case.  If the Defendant accepts the offer, then a document is filed with the Court setting forth the terms of the plea.

    Sometimes, there is a strong likelihood that jail sentence will result from a conviction based on the facts of the case, the Defendant's criminal history (prior arrests and convictions) and the sentencing tendencies of the Judge.  A plea agreement may be reached wherein this jail possibility can be avoided.  The plea may involve conviction of a lesser charge.

    Plea Bargaining is a necessity in most jurisdictions.  However, it should only take place after careful examination, discussion and evaluation of the case has occurred.  The strengths and weakness of the case has been evaluated.

    Where there is a Plea Bargain, the result is a conviction the same as if there had been a trial with a guilty finding.  The difference is that the parties have attempted to minimize some aspect of the outcome of the case.

 The purpose of the above is provide general information on the law  which is subject to constant change.  It is not intended to render advice as to any who read it.  If you have specific legal problems, you should consult with an attorney.