Tag: criminal defense

Misdemeanor Diversion Can Get Your Case Dismissed

Misdemeanor diversion under Penal Code section 1001.95 is possible for most misdemeanor charges. However, it is not available for misdemeanor violations of:

  • Penal Code § 273.5 (domestic violence);
  • Penal Code § 243(e) (domestic violence battery);
  • Penal Code § 646.9 (stalking); or
  • Any criminal conviction that requires registration under section 290 (sex offender registration).

Applying for Misdemeanor Diversion

  1. Ask the prosecutor for diversion. Many prosecutors offices already have a misdemeanor diversion program that they offer to defendants facing non-violent misdemeanor charges. Sometimes the prosecutor will offer diversion before any they file a criminal case. If the prosecutor does press charges, the defendant can still negotiate a diversion program with the prosecutor.
  2. Ask the Judge for diversion. Under Penal Code section 1001.95, the Judge may grant diversion even over the objection of the prosecutor. If the judge does grant diversion, the defendant must comply with the terms, conditions, and programs as ordered by the Judge.

Benefits of Diversion

If the judge grants diversion, criminal proceedings are suspended. If the defendant complies with all the terms, conditions, and program ordered by the Judge, at the end of the diversion period the judge must dismiss the case against the defendant.

Length of Diversion

Although diversion can be up to 24 months, it typically lasts 6 months to one year. For some prosecutor diversion programs, the length of diversion is 90 days. However, the defendant can ask the Judge to terminate diversion prematurely once they have successfully completed all conditions and programs.

Failing Misdemeanor Diversion

If the defendant does not comply with the terms and conditions of diversion, the judge will hold a hearing to determine whether to resume criminal proceedings. If the judge finds that the defendant has not complied with the terms and conditions, the criminal case against the defendant resumes.

Terms of Diversion

Terms and conditions of diversion are meant to address the criminal allegations. For example, if the charge is drunk in public, the judge could order the defendant to attend AA meetings or an alcohol course. For a petty theft charge, the judge could order the defendant to pay restitution for their damages and attend a theft awareness course.

How Much Does a Criminal Defense Attorney Cost?

Attorney cost varies depending on who represents you. There are three options for representation in criminal defense cases:

  • Self-representation
  • Public defender
  • Private attorney

Self-representation

Self-representation, commonly known as “in pro per,” has no attorney cost. However, you could have to pay court costs and discovery charges.

Public Defender

The public defender charges a minimal fee for representation, although the judge can chose to waive this fee. You could have to pay court costs and discovery charges.

Private Attorney Cost

Private attorney cost varies depending on the attorney and the facts of your case. Most attorneys require a retainer, but there are attorneys willing to do work hourly. Hourly fees vary, but typically criminal defense attorneys charge $250-750 per hour.

If you hire a private attorney, you will likely have to pay court costs and discovery charges.

What is a Retainer?

attorney cost

A retainer is a contract for a fixed amount of money in exchange for legal services. The retainer can be a lump sum that covers the entire case, or a down payment on the attorney’s hourly work*.

*If the retainer is a down payment on hourly work, you are entitled to refund of any unused funds when you case is concluded.

How much is a typical retainer?

Retainers typically range from $2,500 for misdemeanor cases to $15,000 for felony cases. Most attorneys charge extra to take the case to trial.

Can I negotiate the retainer amount?

Many attorneys are willing to negotiate the retainer amount and take monthly payments. You can also ask the attorney to divide the case into sections.

For example, you can set the attorney cost up to arraignment, with another payment due if the case proceeds past arraignment.

Whatever agreement you make with an attorney, be aware that you get what you pay for. If you want premium services, you should pay premium dollars.

attorney cost

Caution Against Self-Representation

Generally it is not a great idea to represent yourself. You likely do not have the same abilities of an experienced criminal defense attorney, including legal skills, experience with courtroom proceedings, and connections to district attorneys, judges, and court staff.

Do not represent yourself solely because you are worried that your attorney will not fight for you. Instead, take the time to hire an attorney that you trust and with whom you enjoy working.

attorney cost

Law Offices of Russell Brown

Criminal Defense Lawyer

I Just Got Arrested, Now What?

After you are arrested, continue to assert your 4th Amendment right to refuse search (except when arrested for DUI) and 5th Amendment right to remain silent.

arrested

right to remain silent

It is very important to remain silent because your own statements can be used to convict you. Wait until your attorney is present before you make any statements to police.

Statements that seem innocent such as, “I didn’t mean to do it,” “I drank much earlier today,” or “he pushed me first,” are actually confessions to a crime.

Tips and Tricks to Remaining Silent

arrested

Confessions are an easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to remain silent, the police have developed strategies to get you to talk.

“if you didn’t do anything wrong, tell me what happened.”

You may be guilty of a crime even though you didn’t do anything “wrong.” For this reason, it is best to say nothing to police until your attorney is present.

waiting for you to start talking

If you start a conversation with police, you have waived the right to remain silent. Remember: “Any statements you make can be used against you in a court of law.”

“you have the right to remain silent…”

The Rule

If police do not give you this well-known Miranda warning, your confession could be excluded from criminal proceedings.

Miranda Limitation

However, the Miranda rule only excludes confessions that occur during “custodial interrogations.” Those are interrogations that occur in police custody, typically in a holding area or at a jail.

Police Strategy

Police usually follow the Miranda warning with “Do you want to waive these rights and talk to me?” You can invoke your right to remain silent by stating, “No. I don’t want to talk to you.” If you remain silent, police may continue to talk to you. You can re-invoke your right at any time by saying “I don’t want to say anything else, I want to talk to a lawyer.”

right to refuse search

It is also important to refuse search because evidence found during the search can be used to convict you. If you consent to search of your property, you waive your right to contest the search in court.

Exception: Arrested for DUI

If you are arrested for DUI, you must provide a blood, breath, or urine sample to determine you blood alcohol concentration (BAC). Failure to provide a sample can result in additional criminal charges AND further DMV action against your license.

Tips and Tricks to Refuse Search

arrested

Consensual search is any easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to refuse search, the police have developed strategies to convince you to consent.

“sign a consent to search form to get your phone back”

If police believe there is evidence of a crime on your phone, they will not return it to you unless you consent to search. We all “need” our smart phones, but you will likely be better off refusing search and picking up a temporary phone.

“if you don’t consent, we will get warrant”

You have the right to insist police obtain a warrant, except when you are arrested for DUI. Requesting a warrant will delay the police, so be polite and let them know you respect them and their job.

“if you have nothing to hide, let us search”

Your personal items are private and you have the constitutional right to refuse search.

“if you work with me, I’ll work with you”

Even if you cooperate with police, they are not legally required to help your case.

Russell Brown
Criminal Defense Attorney