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  • No Contest Plea vs. Guilty Plea Revisited

    12/30/20112:08:27 PM Link 0 comments | Add comment

    accident, attorney, car accident, civil, claim, Criminal Defense, criminal law, criminal procedure, guilty plea, no contest

     

    We have discussed this topic before; however, lately our office has received multiple emails on the subject so we are going to revisit it.

    In a criminal case there are typically four options for the defendant when entering their plea to the charges in the information filed by the prosecution: (1) Not Guilty, (2) Guilty, (3) No Contest and (4) Not Guilty by Reason of Insanity.

    The Not Guilty plea is pretty self explanatory; if you plead not guilty you are saying you did not commit the criminal offenses alleged and that you wish to have your case heard at trial.

    The Guilty plea is also pretty straight forward.  If you plead guilty, you are stating that you are guilty of the offenses charged; that you do not wish to have your case heard by a judge or jury at trial; and that you are ready to receive your punishment.

    The No Contest or Nolo Contendere plea is where most people get confused.  A No Contest plea is treated the same as a Guilty plea for purposes of sentencing.  In other words, if you plead No Contest, the judge will treat you as if you have pled Guilty.  The only difference is that a No Contest Plea cannot be used against you in a separate proceeding, such as a civil lawsuit based on the same set of facts.  You most often see No Contest pleas when there is an issue of restitution in the case, such as damage to property, payment of medical bills, etc. 

    For example, if someone is charged with Willful Reckless Driving, and there was a car accident that resulted from the alleged criminal conduct, the person is not only facing criminal prosecution for the driving offense, but also potential civil liability from the person(s) who was/were harmed (i.e. the person they hit might sue them for money).  This is where the individual’s criminal defense lawyer will advise their client to plead No Contest instead of Guilty, if a plea agreement is reached.  The reason is that later on if their client is sued by the injured party who was hit during the accident, the injured party will not be able to use the No Contest plea against the individual they are suing for damages.

     

     

  • Criminal Case Prosecutions in Omaha, Nebraska

    11/21/201110:53:17 AM Link 0 comments | Add comment

    criminal, criminal defense, criminal law, criminal procedure, Douglas County Attorney, Driving Under the Influence, DUI, felony, Omaha City Prosecutor, Prosecution, trial, U.S. Attorney

     

    There are three offices in Omaha that prosecute crimes: (1) The Omaha City Prosecutor's Office; (2) The Douglas County Attorney's Office and (3) The U.S. Attorney's Office.  The Omaha City Prosecutor's Office handles prosecution of all misdemeanor offenses that are committed in Omaha or Douglas County (i.e. DUI's, misdemeanor assaults, traffic offenses, etc.).  The Douglas County Attorney's Office handles the prosecution of all felony offenses that occur within Douglas County, as well as all domestic violence crimes (i.e. murder, robbery, drug possession, felony DUI, domestic assault, etc.).  The U.S. Attorney's Office handles the prosecution of all federal crimes that take place within the District of Nebraska.

     

    Often times, there is an overlap in jurisdiction between the Douglas County Attorney and the U.S. Attorney.  This happens most often in drug trafficking cases.  If you are being prosecuted for a misdemeanor driving under the influence charge or a simple assault and battery in Omaha, Nebraska, you are likely being prosecuted by the City Prosecutor's Office.  If you are charged with a felony offense such as felony driving under the influence, felony theft, drug possession or first degree assault, then you are likely being prosecuted by the Douglas County Attorney's Office.  If your criminal charges involve violation of a federal statute or transporting illegal items across state lines (most often guns or drugs), then you will be dealing with the U.S. Attorney's Office.

     

  • Speeding Tickets and The S.T.O.P. Class

    9/21/20114:46:11 PM Link 0 comments | Add comment

    attorney, Auto, criminal, criminal defense, Criminal Defense Lawyer, DMV, license, speeding, STOP class, ticket

     

     

    STOP Class.  Pretty much everyone has heard of STOP class.  You take it if you receive a traffic ticket and are eligible, and completion of the class keeps the ticket off of your driving record.  STOP class is a good idea when available because not only does it end up in dismissal of your ticket, it keeps points off of your driver's license.  Every traffic offense results in a specified amount of points on your license (i.e. a DUI conviction is 6, speeding tickets are usually 1-3, etc.).  If you receive 12 or more points in a two-year time frame, your license gets revoked by the DMV.  What many people don't realize is that STOP class can be given as part of your sentence by the judge regardless of whether you have recently taken it or not.  And, anytime you take the class, the points from the traffic infraction are not assessed on your license.  If you are someone who has a terrible driving record and is at risk of accumulating 12 or more points, you should speak to your attorney about the STOP class as an option at sentencing.

     

  • What is Diversion? How do I keep a conviction off of my record?

    7/2/201110:29:35 PM Link 0 comments | Add comment

    arrest, attorney, Criminal Defense, Criminal Defense Attorney, Criminal Defense Lawyer, criminal law, diversion, drug court, felony, misdemeanor

     

    We have already discussed expungements, pardons and set-asides; however, what’s even better is keeping the conviction off your record in the first place.  Aside from not getting arrested or winning at trial, there are generally two ways of keeping a conviction off your record: (1) some type of pretrial diversion program or (2) some type of post-plea diversion program.  In Omaha, NE, the two most popular programs for keeping a conviction off your record are Diversion and Drug Court.

     

    In order to be eligible for Diversion, you must meet certain requirements.  You cannot have a significant prior record and the crime(s) you are alleged to have committed must not involve violence.  You will not be allowed into a diversionary program if you are charged with violent offenses such as robbery, assault or murder; however, if you are charged with less serious offenses such as shoplifting, drug possession or damage to property, you may be a candidate.  Each person in the Diversion program has requirements that are specifically tailored to that person’s circumstances.  Requirements for Diversion can include restitution, community service, finding employment, finishing a degree, anger management, etc.  If you are allowed into the Diversion program, and you complete the terms of your program successfully, the State will dismiss all charges against you.  If you do not complete the terms of your program, or if you get into additional trouble, you will be kicked out of the program and the State will proceed with your prosecution.

     

    The Drug Court program is very similar to Diversion; however Drug Court occurs post-plea and centers on substance abuse.  Post-plea means that you begin the program after you enter a plea of guilty to the crimes you are charged with.  If you complete the program successfully, you are allowed to withdraw your plea of guilty and the State then dismisses the charges against you.  Drug Court generally is more intensive than general Diversion.  Drug Court participants have meetings once a week at the courthouse.  Participants in the program must stay sober and are required to follow-through with their specific treatment program.  For the most part, participants are not kicked out for relapsing; although, there are sanctions for misconduct and serious consequences for lying and/or reoffending.  Because Drug Court is post-plea, the judge can sentence you on your underlying charges at anytime should you not hold up your end of the bargain. 

     

    If you have been charged with a criminal offense in Nebraska, and you do not have a lengthy record and/or your problems revolve around substance abuse, make sure to speak with your criminal defense lawyer about the possibility of a Diversion or Drug Court program. 

     

     

  • How do I get something off my record? – Expungements, Pardons and Set-Asides in Criminal Cases

    5/23/201111:24:22 AM Link 0 comments | Add comment

    attorney, criminal, criminal defense, DUI, expungement, guilty plea, lawyer, pardon, set-aside

     

    Typically, a record showing past contact with law enforcement is not good for employment purposes. Often, people at some point in time are in the wrong place at the wrong time or have a brief error in judgment which results in a criminal conviction on their permanent record. Most people who fall into this category are dealing with an offense that in some way involves drugs or alcohol, such as a DUI, MIP or Possession of Marijuana. Unfortunately, in Nebraska there are only three ways to have something removed from your criminal record: an expungement, pardon or set-aside.

     

    For some reason expungement is the first word that comes to mind for most people when seeking to have something removed from their criminal record. However, expungements are governed by Neb. Rev. Stat. § 29-3523, and are only applicable when no conviction was ever received. An expungment only removes an entry on your criminal history, not a conviction. In other words if your DUI lawyer or criminal defense lawyer was able to get your charges dismissed or have you entered into a diversion program which resulted in your DUI charges or criminal charges being dismissed, then you may be eligible for an expungment. In fact, in most of the previously mentioned scenarios the criminal entry on your record should automatically be removed by law.

     

    The next term that is commonly tossed around is pardon. A pardon is when the Governor or Mayor (depending on whether the crime was based on a state statute vs. a city ordinance) decides to “pardon” your crime, thus restoring a certain status and various civil liberties. For most serious offenses, pardons are controlled by the State of Nebraska Board of Pardons. To receive a pardon you must file an application with the appropriate office, and you must have a pretty compelling argument for the Nebraska Board of Pardons. Pardons are not often given. They can take significant time and can be quite expensive.

     

    The last term, which you do not hear very often, is set-aside. Conviction set asides are governed by Neb. Rev. State. § 29-2264, and are the most common way of having a criminal entry on your record disposed of. In English, a set aside is when after you have been convicted of a criminal offense, your criminal attorney takes your case back in front of the judge who sentenced you and requests that your conviction be “set aside”. The way a set aside shows up on your record is just that; your record will show that you were convicted of a criminal offense such as Driving Under the Influence and then later that the conviction was “set aside”. In order to be eligible for a set-aside, you cannot have served any jail time as part of your sentence, and you must have completed all terms of probation successfully and/or paid any fines and costs in full. A set aside can be extremely helpful when seeking new employment; however, it is not a magic wand which erases the conviction completely from your criminal record. Once a conviction has been “set aside”, you are not required to list that conviction on a job application; but employers who do extensive enough background checks will still see the relevant entries on your criminal history report. It is always a judgment call, but often times the best way to use a set aside is to help explain a situation, rather than hide it. If you have a past run-in with law enforcement that is currently haunting you or making it difficult to find work, consult with a criminal defense attorney nearby to decide whether any of the above options are a good idea for you.

     

     

  • Will Entering a No Contest Plea Keep a Criminal Conviction Off My Record?

    3/20/20112:09:19 PM Link 0 comments | Add comment

    accident, criminal defense, DUI, personal injury

     

    The short answer is NO.  Pleading no contest instead of guilty will not keep something off your criminal record.  As discussed in previous posts, the purpose of a no contest plea is so that the specific case you are entering a plea in cannot be used against you in civil court.  For all other purposes, a "no contest" plea will be treated the same as a guilty plea.  An example of this is when someone is drunk, runs a red light and hits another vehicle.  The person who caused the accident would face criminal/traffic charges of DUI and failure to stop for a traffic signal.  That same person could also face a civil lawsuit from the person they struck with their car.  The victim, or person driving the car that was struck by the drunk driver who ran the red light, may sue in civil court for property damage and/or damages incurred as a result of personal injuries caused by the accident.  If the person who caused the accident pleads "guilty" in criminal court to DUI and/or running the red light, that plea can be used to prove guilt in a civil case brought by the individual that was driving the other car.  If the person pleads "no contest", that plea cannot be used against them in a separate lawsuit for civil damages.  Long story short, in Nebraska, whether you plead guilty or no contest, the conviction will look the same on your record.

     

     

  • Are Ruse Drug Checkpoints Legal?

    2/28/20118:26:05 AM Link 0 comments | Add comment

    arrest, Auto, criminal, Criminal Defense, illegal evidence, motion to suppress

     

    Often times law enforcement will resort to various types of trickery when fighting crime. One such tactic is the use of ruse checkpoints along interstates and highways. The way the checkpoints work is police or state patrol officers place signs stating there is a drug checkpoint coming up down the road. Typically, the signs are set up so that only one exit exists between where the sign is placed and where the ruse checkpoint is allegedly located. Officers then wait to see which cars pull off the road at the exit located before the ruse checkpoint area. Most any car that leaves the interstate before the ruse checkpoint will be suspected of attempting to avoid the area. The bottom line is ruse checkpoints are legal. With that said, officers cannot stop a vehicle just for exiting the interstate or seeming to avoid the checkpoint area. Officers still need “probable cause” to pull a car over. In English, that means a traffic violation. An officer can pull a car over for failure to signal, failure to maintain lane, speeding or pretty much any other traffic violation; however an officer cannot pull a car over just because the driver of the car decides to exit the interstate directly ahead of a ruse checkpoint area.
     
     
     
     
     

  • Finding a Good Lawyer

    1/1/20112:56:26 PM Link 0 comments | Add comment

    attorney, Criminal Defense, DUI, Lawyer, lawyer search, Personal Injury

    Finding a Lawyer

    Unfortunately for most people, but fortunately for our office, most people need a lawyer in some form or fashion many times throughout their life.  This helps explain why sometimes it seems like one out of every three people you meet are some type of attorney.  When searching for a lawyer it is important to keep in mind why it is you need help in the first place, as well as what exactly you want your attorney to help you with.  Some lawyers will offer services that you do not need or want.  In the alternative, maybe you would like additional help than what is being offered.  Make sure when meeting with prospective legal counsel to voice these requests so you know exactly what services are being offered.  My practice focuses almost entirely on car accident injury cases, criminal cases and DUI defense; therefore any examples used in this post will likely refer to one of those three areas.

    Budget
    It is always good to keep a budget in mind; sometimes you get what you pay for, but other times you simply pay for what you got.  Now, this is not applicable to personal injury cases (i.e. car accidents, truck accidents, motorcycle accidents), where most cases are taken on a contingency fee basis.  However, when hiring a criminal lawyer or dui attorney, the harsh reality is not everyone has the same resources, and thus, not everyone can pay for the same legal services.  Unlike other major purchases in life, most people do not plan ahead for attorney fees.  In other words, more money does not always mean a better product or better service.  And again, make sure you know what you are paying for.  As an example, say you hire an attorney to represent you because you were arrested for DUI.  You and the lawyer agree that in return for representation on your DUI, you will pay a flat fee of $1,000.00 up front (relatively standard fee for a DUI first offense in Omaha, NE).  Does this fee cover all hearings?  What are “all hearings”?  Does the fee include representation for your Administrative License Revocation (ALR) hearing with the DMV?  Does the fee include showing up for additional hearings while you are on probation, such as show cause hearings and probation checks?  If you choose to be a knucklehead and violate your probation, does the fee include services for representation on the your probation violation charge?  These are all the types of questions you need to ask when looking to hire a lawyer.  Obviously, not these exact questions, unless you were recently cited for DUI, but you get the idea.  Often, you can negotiate exactly what services you would like.  This could mean an increase in fee if the services negotiated for are outside the ordinary; or it could mean a reduction in fee, if there are certain tasks you do not wish your lawyer to perform, but usually come standard.  The bottom line is that in most situations it is important to discuss both fees and services in detail before officially forming an attorney-client relationship.

    Where do I Begin?
    The first place most people will look when they are in need of legal counsel is to their family and friends.  Not everyone has an attorney in his or her family, but most people have at least had some experience with one, and if the experience was good, that lawyer may serve as at least a good starting place in your lawyer search.  Whether you are shopping for a lawyer or any other type of service provider, using the people you know as a starting point is always a good idea.  And remember, if you are looking for a criminal lawyer or personal injury attorney, but only are familiar with an estate planning attorney, give that person a call.  Most likely he or she will know other lawyer who practice in the areas of law you are looking for, and most times he or she will be willing to give you some referrals to serve as a starting point in your lawyer search.

    The next place people will often go is the Internet.  Most prefer the Internet over the phone book for obvious reasons.  Online websites and lawyer profiles typically offer a person more insight into the law office they are researching.  Where ads in the yellow pages are usually overwhelming in number, as well as limited in information; online resources are able to provide pictures, background information and client reviews or testimonials.  

    The last place people will go, usually because they feel they have nowhere else to go, is the phonebook.  Even when using the phonebook or an online lawyer directory, it is a good idea to visit websites and review client reviews before setting up any intial consultations.

    How do I Decide?
    Well, it’s not easy.  Again, as mentioned above the most important thing is to be comfortable with the person who will be representing you.  You need to feel confident that you can trust your attorney, and that you understand exactly what it is your attorney is going to try to do for you.  A few suggestions to take into account when interviewing prospective lawyers are referenced above; however, there are endless other issues to keep in mind depending on what is important to you; things as basic as location, office hours, direct access, support staff, size of the firm, and so on.  Searching for the right attorney does not have to be as complicated and daunting as some make it out to be.  The key is to do a little preparation ahead of time and make sure that you have a specific plan of action.

     

     

     

     

  • I have been charged with Driving Under the Influence (DUI/DWI). What happens to my license? When will I be able to drive?—A brief review of Work Permits and the Interlock Device in Nebraska.

    12/25/20091:36:17 PM Link 0 comments | Add comment

    ALR, Criminal Defense, Criminal Defense Attorney, Criminal Defense Lawyer, DMV, Driving Under the Influence, DUI

    In a previous post, I discussed what happens when you have been charged with DUI and the general processes one goes through.  One of the previous things discussed was license revocations/suspensions.  Again, if you have been charged with DUI/DWI, the first thing you should do is speak to an attorney.  

    When you are convicted of DUI in Nebraska, either at trial or by pleading guilty, you are dealing with two separate license revocations/suspensions: (1) Administrative License Revocation (ALR) through the Nebraska Department of Motor Vehicles (DMV) and (2) license revocation, suspension or impoundment by the Court.  You are entitled to attorney representation throughout both of these processes.  Often times both license suspensions will run concurrent (at the same time).

    In Nebraska, there are basically two options for driving during your license suspension: (1) a Work Permit and (2) the Interlock Device.  Most lawyers/attorneys prefer their clients opt for the interlock device if they can afford it.  The reasons many attorneys, including myself, prefer the interlock device to the work permit are that the interlock device is much more flexible than the work permit, and the interlock device can keep points off of your drivers’ license.

    The interlock device provides much more flexibility than the work permit.  A work permit only allows a person to drive to and from work.  If a person has more than one place of employment, they must register a work permit with each and every employer.  Also, as mentioned above, the interlock device keeps points off of your drivers’ license.  If a person acquires twelve or more points on their license within any two-year time period, their license will be revoked by the DMV; use of the interlock device can keep these points off of your driving record.

    The work permit does, however, have some advantages to the interlock device for someone who is facing a DUI.  First, a person facing a DUI charge and serving an ALR suspension is eligible to receive a work permit before the person charged with DUI goes in front of a judge.  On a first offense DUI in Nebraska, the person cited can apply for a work permit once they have served the first thirty days of their ALR suspension with the Nebraska DMV, compared to the interlock device which must be ordered by the Court as a term of probation.  Second, a person charged with driving under the influence is only required to maintain SR-22 insurance during the duration of the work permit, whereas someone using the interlock device is required to keep an SR-22 certificate on file for three years.

    The bottom line is there often are available options for driving during portions, if not all, of your license suspension/revocation.  What options are available to you depends on the facts surrounding your situation.  After you have been cited for DUI, speak to an attorney as soon as possible to discuss what is best for you.

  • Nebraska DUI/DWI Overview--I been charged with Driving Under the Influence. What happens now?

    12/8/20099:41:59 PM Link 0 comments | Add comment

    ALR, Criminal Defense, Criminal Defense Attorney, Criminal Defense Lawyer, DMV, Driving Under the Influence, DUI

    When you receive a DUI/DWI in Nebraska you are dealing with two separate processes: (1) the Department of Motor Vehicles (DMV) Administrative Loss Hearing (ALR) and (2) the State of Nebraska criminal justice system.

    First, let’s discuss the process of dealing with the DMV.  Whenever you have been cited for Driving Under the Influence, you face the possibility of the DMV suspending your license.  The time period for suspension depends on whether your license has previously been suspended by the DMV under the ALR process.  DMV license suspensions for first offenses are ninety days.  

    When you have been given a citation or arrested for DUI in Nebraska, you will be given at least three things: (1) copy of your citation or booking sheet from the jail, (2) thirty-day temporary license/notice/sworn report (typically yellow in color) and (3) request for ALR hearing form.  You only have ten days from the alleged date of the offense to request an ALR hearing by sending in the proper form.  If you do not request a hearing within the ten-day time period you waive your right to hearing on the matter, and your license will be automatically suspended for the requisite time period determined by the DMV.   The thirty-day temporary license form serves as your license for the thirty days immediately following your citation.  If you lose your ALR hearing with the DMV, your ninety-day license suspension will begin at the expiration of your thirty-day temporary license; if you win the ALR hearing you may continue to drive unless or until a judge orders your license suspended, revoked or impounded.  ALR hearings are held telephonically and only address the issue of whether probable cause existed that the person cited for DUI was in operation of a motor vehicle while under the influence of alcohol or drugs.

    Second, let’s discuss the criminal justice system.  When you are cited or arrested on charges of Driving Under the Influence, you will also face criminal penalties in state court. The criminal penalties you will face can be broken down into four basic categories: fines and costs; jail time; probation; and license suspension, revocation or impoundment.  What penalties you are facing depends on whether you have had any prior convictions for DUI and what your blood alcohol level was at the time of the offense.

    In Nebraska, the limit for alcohol in your system while operating a motor vehicle is .08.  If your blood alcohol level is .08 or greater, you will likely be cited for Driving Under the Influence; if your blood alcohol level is .15 or greater, you will likely be cited for what is called an aggravated DUI offense.  Aggravated DUI offenses carry greater criminal punishments than non-aggravated offenses.  In Nebraska, the punishment for a first offense DUI non-aggravated is either: (1) probation, $400.00 fine and sixty-day license revocation or impoundment; or (2) seven to sixty days in jail, $400.00 to $500.00 fine and six month license revocation or impoundment.  The punishment for a first offense DUI aggravated is either: (1) probation, two days jail time or 120 hours of community service, $500.00 fine and one-year license revocation or impoundment; or (2) seven to sixty days in jail, $400.00-$500.00 fine and one-year license revocation or impoundment.   Typically, a judge will order that your court-ordered license revocation period run concurrently (at the same time) with your DMV ALR suspension.  This means if you are suspended for ninety days by the DMV and sixty days by the court, your total license suspension/revocation will be ninety days.

    Offenses for Driving Under the Influence are very serious.  The statutes and regulations governing DUI’s are constantly changing.  Nebraska’s current DUI laws were enacted as recently as 2006, and new statutes governing the use of the ignition interlock device went into effect earlier this year.  If you have been charged with Driving Under the Influence make sure to consult with a licensed attorney.

  • Should I Talk to Police?

    11/8/20099:21:34 AM Link 0 comments | Add comment

    Criminal Defense, Criminal Defense Attorney, Interrogation, Police Interview

    NO.  Unless the officer or detective is your next door neighbor and you are discussing plans for a BBQ, you should never ever speak to law enforcement without an attorney present, and you should almost never speak to law enforcement even with an attorney present.  The bottom line is this: "everything you say can, and will, be used against you".  You have everything to lose from speaking to police regarding a crime that has been commited, but almost never anyhting to gain.  I can think of many past clients of mine who hurt themselves by speaking with authorities before retaining a lawyer, however not one comes to mind that benefitted from speaking with police.  Law professor, James Duane from the Regent University School of Law has a great video presentation on why you should never speak to police regarding a criminal matter.  The presentation is appropriately titled "Don't Talk to Police", and provides a relatively in depth lecture on why speaking to police about criminal matters is generally a very bad idea.  I have attached a link to the video below.

     

    "Don't Talk to Police" by Professor James Duane

     

     

  • New Personal Injury and Criminal Defense Blog

    10/28/20092:57:13 PM Link 0 comments | Add comment

    Blog, Criminal Defense, Personal Injury

    Welcome to the Law Office of Eric R. Chandler! We specialize in Personal Injury and Criminal Defense law. Our focus is on helping injured victims and persons charged with criminal offenses successfully negotiate and navigate the court system.  Here are some photos of our office located in Downtown Omaha, Nebraska.

     


     

     

     

     

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