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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. 

     

  • 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.

     

  • I accidentally missed my court date. What should I do?

    8/1/20119:14:04 PM Link 0 comments | Add comment

    attorney, civil, court, criminal, failure to appear, lawyer, trial

     

    It is not uncommon for people to miss court dates.  It is not advised, but nevertheless not uncommon.  It depends what type of hearing you missed (criminal, civil, arraignment, trial, etc.), but regardless, the first thing you should do is call your lawyer.  If you missed a hearing for a criminal or traffic proceeding, there is likely a capias (bench warrant) for your arrest.  You will need to have your case brought back into court so the judge who ordered the arrest warrant can cancel it.  If you missed a prove-up hearing on a civil matter, there is a good chance the judge ruled against you.  The worst thing you can do after missing court it put it off.  If you missed court, get your rear end to your atorney's office and have he or she get you in front of a judge as soon as possible.

     

     

  • 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.

     

     

  • Do Police Have To Read You Your Miranda Rights?

    3/31/20119:10:15 PM Link 0 comments | Add comment

    criminal, criminal law, interrogation, lawyer, Miranda rights, suppress

     

    The short answer is NO.  Police officers do not have to read you your rights.  Not having your rights read to you is not a get out of jail free card.  Now, there may be consequences as a result of law enforcement not properly informing you of your rights under the Miranda decision.  For instance, depending on the circumstances, evidence gained by law enforcement after your detention or arrest, but before you have been mirandized, may be “suppressed” or kept out of trial by the judge.  Let’s use someone who is arrested as a suspect in a robbery case as an example.  If law enforcement interrogates that person without ever properly mirandizing them (i.e. informing them of their right to counsel, to remain silent, etc.), there is a good chance a good criminal defense attorney will be able to suppress or keep any of the statements their client made from being used against them at trial.  Now, if there is no harm then no foul.  In other words, if the same person is arrested as a suspect, interrogated and refuses to make any statements; then there are no statements which will need to be suppressed by that person’s attorney.  Again, to reiterate, no Miranda does NOT equal no jail.  Many seasoned police officers will not advise a suspect of their rights on purpose to see if the suspect makes any "voluntary" statements.  Statements made voluntarily, without inducement fom law enforcement, are generally admissible as evidence in a criminal trial.  Just remember, if ever questioned by law enforcement it is best to not make any statements other than your statement requesting a lawyer. 

     

     

  • 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.
     
     
     
     
     

  • What is the difference between a No Contest Plea and a Guilty Plea?

    1/26/20118:15:22 AM Link 0 comments | Add comment

    car accident, civil, criminal, Criminal Defense Lawyer, criminal procedure, guilty plea, no contest

    Most people truly do not understand the difference between a guilty plea and a no contest plea.  The biggest difference has to do with civil liability.  A Guilty Plea to a criminal charge can be used against you in a civil proceeding later on down the road, whereas a No Contest Plea cannot.  For instance, if you throw a brick through a person’s window, you will be criminally prosecuted for Damage to Property or Criminal Mischief.  At the same time, the person who owns the window may sue you civilly requesting payment for the damage you caused to their window.  If you plead no contest in criminal court, the person with the broken window will have to put on evidence in the civil case proving that you broke the window and cannot use the criminal case against you in court.  If you plead guilty in criminal court, the person with the broken window can use the guilty plea against you in the civil lawsuit to prove liability.  If you plan on entering a plea in accordance with a plea agreement in a criminal case, and you are charged with a criminal offense that could eventually lead to a civil lawsuit (i.e. assault, damage to property, car accident, theft, embezzlement, etc.), you will want to enter a plea of no contest instead of guilty whenever possible.

  • Jury Trial vs. Bench Trial

    1/13/20118:50:32 PM Link 0 comments | Add comment

    attorney, criminal, criminal procedure, jury, lawyer, trial

     

    Am I entitled to a Jury Trial?
    When you are charged with a criminal offense, you typically have two options, trial or plea. You can either proclaim your innocence and take your chances at trial; or your criminal lawyer can work a plea agreement with the prosecution, and you can enter a plea of guilty or no contest in accordance with the plea agreement. If you are charged with a criminal offense which is punishable by more than six months in jail, you are entitled to a trial by jury. 
     
     
    What is a Bench Trial?
    The alternative to a jury trial is a bench trial. A bench trial is a trial to the judge. In a jury trial the judge will determine any questions of law and the jury will decide all issues of fact. In other words, the judge decides what evidence is allowed at trial and the jury decides whether or not you are guilty. 
    In a bench trial, there is no jury. It is the judge’s job to decide all issues. In a bench trial the judge still decides issues of law such as evidence and procedure; however, the judge also makes all factual determinations. There are some situations in which there is no right to a jury trial (i.e. misdemeanor crimes that are not punishable by more than six months in jail, juvenile proceedings, etc.).
     
     
    Should I Have a Jury Trial?
    Whether or not you should exercise your right to a jury trial depends greatly on the facts of your criminal case. There can be advantages to having a judge determine your guilt in a criminal trial; however, in most situations a jury trial is preferred when available. One reason for this is that jury verdicts in criminal trials must be unanimous (for a guilty verdict to be entered every single juror must agree that you are guilty). It is usually easier to convince one person out of twelve, or one person out of six, that you are not guilty rather than one person out of one.  Either way, if you are currently facing criminal charges, discuss your options with your defense lawyer.  Whether you are on trial for a serious assault, drug charges or a DUI; whether or not it is in your best interests to proceed with a jury trial is something that should definitely be discussed with your lawyer.
     

  • 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.
                                                                  

  • Misdemeanor Criminal Procedure Timeline

    9/10/20103:21:17 PM Link 0 comments | Add comment

    attorney, citation, criminal, defense, misdemeanor

     

    Most people who are charged with criminal offenses such as drug charges, theft or driving under the influence have no idea how a case progresses through the criminal court system.  General procedure is the same, or at least similar, from jurisdiction to jurisdiction; however details in how things are handled vary greatly between federal court and state court, as well as between different states and sometimes even different counties.  I have listed below a basic outline of what happens within county courts in the state of Nebraska. The following information relates mainly to misdemeanor offenses. Nebraska’s court system is divided into two separate courts: County Court and District Court. In general, misdemeanor crimes are dealt with in County Court and felony crimes are handled at the District Court level.
     
    (1)   Arraignment/Bond Setting—this is your first criminal court hearing once you have been cited or arrested on a criminal offense.  At arraignment, the judge will read you your rights, and you will enter your first plea in the case.  Your choices of pleas are: guilty, not guilty, no contest and not guilty by reason of insanity.  If you stand mute the judge will enter a plea of not guilty for you.
     
    If you are still in jail, the judge will also typically set a bond at this hearing.
     
    If you plead guilty or no contest at arraignment, your case is essentially over. If you plead guilty/no contest to a misdemeanor, you will either be sentenced immediately, or the judge may order a presentence investigation (PSI). If the judge orders a PSI, you will be sentenced at a later date. 
     
    *On felony cases, you are typically not allowed to enter a guilty plea at your first arraignment in county court.
     
    (2)   Pretrial Hearing—at this hearing progression of the case is discussed between all parties. Often times plea agreements are reached and cases are disposed of at the pretrial hearing/conference. There are only pretrial conferences for misdemeanor cases that are set for jury trial. If you are charged with an offense that does not make you eligible for a jury trial, or you have waived your right to a jury trial, there will usually not be a pretrial conference on your case.
     
    (3)   Hearings on Motions—for most motions filed by either you or the prosecution, 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.
     
    (4)   Trial—you know what this is. Both sides get to present evidence in support of their side of the case. The prosecution goes first.
     
    (5)   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 a criminal offense most often includes: jail, probation, fines, restitution or some combination of all of the above.
     

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