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  • Bonds, Pretrial Release & Sentencing Guidelines – The Many Differences Between State and Federal Court

    5/15/20128:48:42 PM Link 0 comments | Add comment

    arrest, attorney, bail, bond, criminal, Criminal Defense Lawyer, criminal law, criminal procedure, federal court, felony, pretrial release, Prosecution

     

    Although the general concepts and theories for prosecuting or defending a criminal case are the same, criminal procedure in federal court is significantly different than in state court.  There are different rules on case progression, different rules regarding pretrial release and more restrictive guidelines for criminal sentencing.

    Every state has both state courts and their local federal court.  Often times there are overlap between the jurisdictions.  In other words, it is possible to be prosecuted in both state and federal court for the same criminal act.  This is one of the most difficult things to explain to a new client, as most people have an incorrect understanding of what double jeopardy is in a criminal case. 

    The states that make up the United States of America are all sovereign states; they have complete power over their own state matters, and thus control over prosecutions for criminal offenses which occur within their borders.  The exception to this is when the crime committed is a violation of federal law.  In this situation, it is possible for there to be criminal consequences at both the state and federal level.  The reason punishment for criminal conduct can take place in both state and federal court without triggering the double jeopardy clause is because state governments and the federal government are considered to be separate sovereigns, having separate sovereign powers.

    Another misconception is that federal court trumps state court, or that federal court is more serious.  State court prosecutions are just as serious as federal court prosecutions.  In fact, most murder cases are tried in state court, as most homicides do not involve an issue of federal law.  You see most of the overlap between state and federal prosecutions in cases involving gun charges or drug charges.

    Pretrial release is also a way in which federal court differs from Nebraska state court.  Typically, if someone is charged with an offense in state court, a bond will be set at their first court appearance.  If the individual is able to post bond, then that person will be released pending litigation of their criminal charges.  In other words, the person gets to live at home while they are being prosecuted.  In federal court there is pretrial release; however, there are no bonds.  Either you get pretrial release or you don’t.  Instead of a bond setting hearing, in federal court there is a detention hearing.  The magistrate judge either authorizes pretrial release or he doesn’t.

    It is true that the federal sentencing guidelines often result in harsher punishments being given out at the federal level, but felony charges are serious whether charged in state or federal court.  When facing criminal prosecution, it is important to take into account potential consequences at both the state and federal level, as well as discuss all options with your attorney. 

     

  • What Should I Look For in a Criminal Defense Attorney?

    8/1/20118:43:40 PM Link 0 comments | Add comment

    arrest, Criminal Defense Attorney, Criminal Defense Lawyer, criminal law, criminal procedure, DUI

     

    I have been seeing this question a lot lately.  Probably the best answer is choose someone you trust and are comfortable with.  Of course you want to look for a lawyer that has experience and is familiar both with the courthouse and your specific type of case.  But once you narrow the field, the best idea is to meet with prospective attorneys and decide which one you will be most comfortable with.  Beside the outcome, try to think of what will be most important to you during the pendency of your case (i.e. promptly returning phone calls, face-to-face time, demeanor, price, etc.).  Then ask the criminal lawyers you meet with questions based on the criteria you have developed.  Again, the bottom line is that when you are facing prosecution on criminal charges you will be nervous enough as is.  You need to be able to trust your attorney and feel comfortable that he or she is doing their best to represent your interests.

     

     

  • Can I get a DUI if I was not drinking alcohol?

    7/11/20119:05:40 PM Link 0 comments | Add comment

    arrest, Criminal Defense Attorney, Driving Under the Influence, DUI, marijuana

     

    Yes.  As discussed in prior posts, DUI or Driving Under the Influence, consists of operating a motor vehicle while under the influence of alcohol OR drugs.  If your ability to drive has been impaired from drinking alcohol or taking drugs (i.e. marijuana, prescription drugs, cocaine, etc.) then you can be charged with DUI.  With that said, the Datamaster (breath test) typically only tests for alcohol.  It is difficult to determine when most other drugs entered your system.  It is easy to determine whether someone has marijuana in their system; however, it is difficult to determine when the marijuana was ingested.  Therefore, if you are arrested for driving while under the influence of drugs, such as driving under the influence of marijuana, your DUI might be much more difficult for the prosecution to prove up at trial depending on the facts.

     

  • I was ticketed, and when I went to court I was charged with something else? Can a misdemeanor be changed to a felony?

    7/11/20118:41:19 PM Link 0 comments | Add comment

    arrest, attorney, citation, Criminal Defense Lawyer, misdemeanor

     

    Any time you are given a citation or booked into jail on criminal charges, the charges you were arrested on may change by the time you get in front of a judge.  It is the police officer’s job to determine whether it is likely that you committed an offense (probable cause).  The officer then either gives you a ticket or books you into jail on the offenses he or she believes you have committed.  The citation or booking sheet; however, is just a recommendation of what to charge you with. 

     

    The actual decision is up to the prosecutor.  The prosecuting attorney is sent the citation or booking sheet, along with the corresponding police reports.  The prosecutor will decide what to charge you with based on what he or she believes they can prove beyond a reasonable doubt.  Often times, the prosecutor will either add charges that were not included when you were first apprehended by law enforcement; or the lawyer prosecuting your case may decide there is not sufficient evidence to prosecute and dismiss some, or all, of the criminal charges against you.  Because of this, a misdemeanor can turn into a felony; and a felony can turn into a misdemeanor. 

     

    In Omaha, Nebraska, the Douglas County Attorney’s Office is responsible for prosecuting all felony offenses (i.e. robbery, drug possession, felony theft, murder, etc.) and crimes involving domestic violence.  The Omaha City Prosecutor’s Office is responsible for prosecuting all misdemeanor offenses (i.e. DUI’s, traffic tickets, misdemeanor shoplifting, etc.) except for misdemeanors involving domestic violence. 

     

     

  • 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. 

     

     

  • 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.
     
     
     
     
     

  • Criminal Procedure Continued--Felony Case Progression in Nebraska

    9/21/20103:42:25 PM Link 0 comments | Add comment

    arrest, attorney, criminal, felony, lawyer

     

    As mentioned in the previous post discussing criminal cases in Nebraska; one of the biggest differences between the Nebraska criminal process for felonies when compared to the process for misdemeanors, is which court you are prosecuted in. In Douglas County, NE, all cases typically begin in county court. Felonies, however, are transferred to district court for further prosecution and, if necessary, trial; whereas a misdemeanor offense, such as a first or second offense Driving Under the Influence (DUI), will stay in county court for all phases of the case. 
     
    Arraignment/Bond Setting—similar to a misdemeanor case, when you are facing felony criminal charges, the first court hearing you have will be an advisement of your rights, as well as a hearing to set bond. As mentioned above, in Nebraska, your case will begin in county court unless the prosecuting attorney files what is called a direct information. This means your case begins in the same place it would were you charged with a misdemeanor crime. During your initial appearance on a felony charge, you can either request a preliminary hearing or waive your right to a preliminary hearing. If you request a preliminary hearing, the judge will set a date for hearing and then take up the matter of your bond. If you waive your right to a preliminary hearing, your case will be “bound over” to the District Court and then the judge will determine your bond. You should always hire a criminal lawyer before appearing in court on a criminal offense; however if you have not had the opportunity to hire an attorney before your first appearance, often times there will be a lawyer appointed by the court there to represent you for that hearing.
     
    Preliminary Hearing—a preliminary hearing is a hearing to establish whether the prosecution has enough evidence to proceed with their case. The burden of proof for a preliminary hearing is much less than that of a criminal trial. The prosecuting lawyer only needs to show “probable cause” for every element of the crime(s) charged. In other words, the prosecutor needs to prove to the court that you, the defendant, “likely” were involved in the criminal conduct alleged in the complaint. If the prosecution meets their burden (wins), then the case is “bound over” (transferred) to the district court. A new judge will be assigned, and the next hearing will take place at the district court level. Often times defendants will waive their right to a preliminary hearing for one reason or another; waiving your right to a preliminary hearing is not an admission of guilt and only waives rights you may have in regard to that specific hearing. If you win your preliminary hearing your case is dismissed by the court; however, the prosecution is allowed to refile the same criminal action, in which case, the entire process starts over. Double Jeopardy does not apply to cases that have not been fully disposed of either at trial or by the defendant entering a form of guilty plea. 
     
    Pretrial Hearing—same as a misdemeanor pretrial hearing, at this hearing motions are filed and progression of the case is discussed between all parties. Often times plea agreements are reached and cases are disposed of. 
     
    Hearings on Motions—again, for most motions filed by either your attorney or the prosecuting lawyer, there will be an opportunity for a hearing. In criminal cases, probably the most popular motion that is heard by the court is a motion to suppress evidence.
     
    Trial—both sides get to present evidence in support of their side of the case. The prosecution goes first. You are entitled to a trial by jury on all felony cases.
     
    Sentencing—if you plead guilty or no contest, or if you are found guilty at trial, you ultimately will be sentenced by the Court (i.e. judge). Sentencing is when you receive your punishment. Punishment for criminal offenses most often includes: jail, probation, fines, restitution or some combination of all of the above. On felony cases, a pretrial investigation (P.S.I.) will almost always be ordered by the court prior to sentencing. A P.S.I. is an investigation done by the probation office into the facts surrounding the case, as well as the background of the defendant. Ultimately, the probation office will usually make a recommendation on whether they believe the defendant is a good candidate for probation; however the judge is not bound by these recommendations or any other recommendations made to the court.
                                                                  

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