Is your Company in our Directory?
Rhoades Douglas Law Office
Proposition 36 was passed by the voters in California a few years ago, and came into law as Penal Code Section 1210.1.
| Address | 200 N Main St Lakeport, CA 95453-4816 |
| Phone | (707) 263-7848 |
| Website | www.lakelaw.net |
Douglas E. Rhoades
Providing criminal defense and other services within the Courts of Lake County, California since 1996,
e-mail: attorney@lakelaw.net
Many people find visiting a lawyer can be an intimidating experience. You come to the lawyer's office to discuss a personal problem that has impacted your life. Let's face it: Most people don't consult a lawyer when everything is going well. Perhaps you've been arrested for driving under the influence, or some other law violation. Conviction of a crime can result in fines, and imprisonment that can range from a few days to many years. That's why every case should be carefully considered, and you should be fully informed of the possible consequences or a plea or conviction. As a former law enforcement officer, Doug Rhoades has the experience and understanding to provide competent, insightful defense for your case.
At the Law Office of Douglas E. Rhoades, our goal is to assist you in solving your legal matter in the most competent, courteous, and cost-effective manner. Rather than intimidate, we want you to know that we truly are here to help you, and keep your costs to a minimum.
In many legal matters, time is very important. Certain filing deadlines must be observed to protect and preserve your rights. Whatever your legal matter, don't delay in seeking our advice.
At the Law Office of Douglas E. Rhoades, we provide a full range of legal services in a competent and cost-effective manner.
CRIMINAL LAW: If you have been charged with a crime, you should call a lawyer as soon as possible. The prosecution of a criminal case may move swiftly, and time is of the essence in preparing your defense. Whether you have violated any law, to protect your rights it is important that you make no statements to anyone, particularly the police, until you have spoken with your lawyer. This cannot be emphasized too strongly. Once you have voluntarily waived your right to remain silent, any statement you make can, and most always will be used against you in court. The desire to "clear up" the case by providing information and telling your story to officers is very strong. Most defendants believe if they could just tell their side of the story, the whole matter might be resolved and no prosecution will occur. Such is rarely true. You have a right to speak with an attorney before any questioning in the investigation of any crime. Demand that right. NEVER waive it.
FAMILY LAW: Some marital dissolutions, commonly called divorces, are more amicable than others. However, many issues may arise about property, support and custody of your children, and division of assets and obligations. There may be serious tax consequences resulting from the wrong actions in a dissolution. You should be fully informed each step of the way.
One of the first questions someone with a potential legal problem must ask is whether he or she really needs a lawyer. This may surprise you (especially coming from an attorney!) but you may not need a lawyer to handle some simple legal matters.
For example, if you have a dispute with a neighbor over damage to your property, and that damage or loss is less than $7,500.00, your best solution may be Small Claims Court. Someone seeking protection from his or her spouse or domestic partner can file papers to prohibit domestic violence without a lawyer, and without a filing fee. These papers, complete with instructions are provided free of charge by the Superior Court Clerk's Office.
Even a very simple dissolution of marriage may be handled without a lawyer, but there may be unseen consequences to the lay person. You may need to protect your right to future spousal or child support, or to protect your right to some community property assets, such as retirement plans or home equity.
Although a lawyer may not need to represent you in your case, it is most always to your benefit to consult with a lawyer before determining any course of legal action.
Doug Rhoades is a native Californian, and a resident of Lake County since 1962. A graduate of local schools, he received his Bachelor of Arts degree from Sonoma State University and his Juris Doctor from Empire College School of Law in Santa Rosa, California, graduating cum laude. Prior to the practice of law, he served for more than twenty years with the Lake County Sheriff's Department, as a deputy and sergeant. He has been active in local community organizations, such as Lakeport Rotary, Big Valley Lions, Hartley Masonic Lodge, and the Lake County Arts Council where he served as president for more than 2 years. He is a former member of the Kelseyville Unified School District Board of Trustees, the Lake County Peace Officers Association, the Northern California Training Officers Association, and the California Association of Police Training Officers. He co-authored the training manual for law enforcement published by the Commission on Peace Officer Standards and Training of California.
As a client, your responsibilities include informing your lawyer of the facts and circumstances of your case as you know them. You should provide all documents relative to your case to your lawyer, and keep your lawyer advised of your phone number and address at all times.
If we may be of assistance to you, please contact us at your earliest opportunity. Thank you for your interest!
All of the above offices are open to the public Monday through Friday, 8:00 a.m. to 1:00 p.m. only.
Back to Top
Directions to the Sheriff's Department
Recent local arrests, inmates presently in custody, current felony warrants and more information is available at www.lakesheriff.com
Lakeport Police Department
DIRECTIONS TO FACILITIES
Four of the five courts of Lake County are located in Lakeport. These are Departments 1 through 3 and Department A. Deparment 4 is located in Clearlake.
Lake County Courthouse and District Attorney's Office
The Courthouse is at 255 North Forbes Street in Lakeport. It contains the courts and the court clerk's offices. To reach the courthouse from south of Lakeport, take Highway 29 north to the Lakeport Boulevard off ramp. Turn right onto Lakeport Boulevard and go east to the stop sign. Turn left onto Main Street, and travel north approximately 1/2 mile to 2nd Street. Turn left onto 2nd Street and go west 1 block to Forbes.
To reach the courthouse from north of Lakeport, take Highway 29 south to the Lakeport 11th Street off ramp. Turn left at the stop sign onto 11th Street. Go east on 11th 1 mile to Forbes. Turn right on Forbes and go south 7 blocks to the courthouse.
The District Attorney's office is one block west, immediately behind the Lake County Courthouse.
South Civic Center
Superior Court Department 4 is located in the South Civic Center at 7000-A South Center Drive, Clearlake. To reach this court, take Highway 53 north or south to the intersection with Old Highway 53. Turn East at the traffic signal toward Wal-Mart/McDonald's. At the first stop sign, turn left onto Dam Road Extension. At the next stop sign, proceed straight and around the left curve at Oak Hill School onto Civic Center Drive. The second building on your left contains the courtroom.
Lake County Probation Department
Lake County Probation is located at 201 South Smith Street in Lakeport. From south of Lakeport take Highway 29 to Lakeport Boulevard. Turn right onto Lakeport Boulevard and immediately left onto Bevins. Go approx. 1/2 mile to stop sign and turn left onto Martin Street. Go two blocks and turn right onto South Smith. It is a one-way street. Parking is available on your left. The office for Mendo-Lake Alternative Services is also at this location.
Lake County Sheriff's Department
The Sheriff's Department is located at 1220 Martin Street in Lakeport. From south of Lakeport take Highway 29 to Lakeport Boulevard. Turn right onto Lakeport Boulevard and immediately left onto Bevins. Go approx. 1/2 mile to stop sign and turn left onto Martin Street. Go up and over the small hill approximately 1/4 mile. The Sheriff's Department is on your right.
Lake County Jail
The Lake County Jail, also known as the Hill Road Correctional Facility is located on Helbush Drive in Lakeport. From south of Lakeport, take Highway 29 north to Park Way and exit. Turn right at the stop sign onto Park Way headed east. At the next stop sign (very close) turn left onto Hill Road East. Go approximately 1.5 miles to Hill Road (just before Sutter Lakeside Hospital) and turn left. Go under the freeway overcrossing and turn right onto Helbush Drive.
From Upper Lake or Mendocino area, take Highway 29 to the Nice-Lucerne Cutoff (Rodman) exit. At the stop sign, turn left and go under the freeway overcrossing. Go approximately 500 feet to the intersection of Westlake, Nice-Lucerne Cutoff and Lakeshore Boulevard. From the Northshore area, take the Nice-Lucerne Cutoff toward Lakeport. Turn right onto southbound Lakeshore Boulevard. Go to Hill Road (approx. 1/2 mile) and turn right. Go past Sutter Lakeside Hospital and turn right onto Hill Road East. Go under the freeway overcrossing and turn right onto Helbush Drive.
Lakeport Police Department
From north or south of Lakeport, take Highway 29 to the 11th Street off ramp. Turn east toward Main Street, and go 1 mile to Forbes Street. Turn right (south) on Forbes and go two blocks to the corner of 9th and Forbes.
Clearlake Police Department
Take Highway 53 to Olympic Drive. Turn west onto Olympic and proceed past the first stop sign at Burns Valley Road. Go another 3/4 mile to the corner of Olympic and Lakeshore Drive. The Police Department is next to City Hall on your right.
Wednesdays @ 9:00 a.m. & 1:30 p.m.
Monday calendars for all courts are heard on Tuesday following a Monday holiday, such as Memorial or Labor Day. Friday calendars in all Departments are heard on Thursdays when the next day is a legal holiday.*
Mondays and Fridays are "calendar days" in all courts. Short hearings and routine matters are held those days. Jury trials are conducted in all court Tuesday through Thursday of each week, usually commencing at 8:15 a.m. on Tuesdays, and 9:00 a.m. on Wednesday and Thursdays. Specific schedules are set for each trial. Based upon courtroom availability and other schedules, any matter may be specially set on other days and times. Consult the court for information on your specific case schedule. If you are ordered to appear in court, failure to appear in that court at the time ordered may result in forfeiture of your bail or bond, or revocation of your release on your written promise to appear, and cause the issuance of an arrest warrant for you. If you have an emergency and cannot appear as ordered, you should contact the specific court immediately.
The Lake County Courts and Court Clerks Office observe all federal and state holidays, as well as two "judicial"* holidays. On these days the courts are not in session and the clerk's offices are closed. They are:
January 1st, New Year's Day;
Christmas Day (December 25).
Any of the above holidays that fall on a Saturday are observed on the previous Friday. Holidays that fall on a Sunday are observed the following Monday.
Here's the 10 essential rules for making your court appearance:
1. Be on time. Being late (or not showing up at all) is very rarely excused, and will likely result in a warrant issuing for your failure to appear and being taken into custody. If you are free on bond, it will be forfeited and your bail will go up. To avoid this, don't be on time. Be early.
2. Be in the right court. Check the summons (citation) or letter you received to be sure you're in the right place on the right day. Doesn't help if you're in Lakeport at the Courthouse when you case is called at the Clearlake Court 25 miles away.
3. Dress appropriately. Don't wear shorts or tank tops. Men should wear long pants and a shirt. Women should not wear revealing blouses or tops. Medium length skirts or pants are recommended. T-shirts are okay, but any questionable words or symbols on the shirt may cause you to be removed from court until you return in acceptable clothes. Play it safe. Coming to court when you're charged with driving under the influence wearing a "Budweiser" shirt is probably not a good idea. Clean clothes are preferred. Also, leave your hat or cap in the car. They're not allowed in court at all.
4. Be polite. Court can be rough on lots of folks, who may be scared, nervous or angry. Why make it any harder than necessary?
5. Do NOT bring young children to court. Babies cry, toddlers wander and will distract you and the court from the important proceedings. Find a friend, a sitter, daycare, grandma or anyone else who can tend your children for the few hours you're in court. Also, if you have kids who might need to be picked up from school while you are in court, make arrangements for someone to do that. Even though your citation or letter might say you have court at 8:15 or 9:00 a.m., its possible (and sometimes likely) that you will be there well into the afternoon. "I have to pick up my child from school" doesn't get you priority, and possibly makes you look like someone who can't plan ahead. You need to concentrate on what's going on, and getting the correct information. You do not need to worry about changing diapers or taking paper clips out of your child's mouth or your child standing at a bus stop while the judge tells you your next court date. If you miss that, well, see #1 above.
6. When your case is called, make your presence known. Approach the counsel tables and wait until you are told what to do or where to sit. When the judge asks questions, answer loudly enough to be heard. There will probably be a court reporter there, and he or she needs to hear your answers to the judge's questions, not just see your head nod or shake. Again, polite answers are best. "Yes, sir" or "Yes, Your Honor" are always accepted as are "No, sir" or "No, Your Honor." You're dealing with someone who can put you in jail, so why not be polite?
7. You will likely be asked if you want to talk to a lawyer. If you have any doubts or questions at all about your case or the charges against you, tell the judge you want to talk with an attorney. If you can't afford private counsel, the court will appoint a lawyer for you. If you think you can afford to hire your own attorney, the court will give you time to do so before your next court appearance.
8. You'll probably be told to come back at a later time. Be sure you get the date, time and location for your next appearance. If you get the wrong date, time or place, you might not be there when you case is called, and again, see #1 above.
9. If an attorney is assigned to represent you, contact him or her as soon as possible after court. If you leave a message with your appointed counsel, be sure to include a telephone number where you can be reached, and tell the attorney the time and date of your next court appearance. Answering machines aren't perfect. Be sure to speak slowly and clearly if you leave a message. Attorneys can't return calls to numbers they can't decipher or names they can't understand. Leaving a message for your lawyer without leaving your name and phone number is waste of time for you and tghe attorney. By the way, cell phones aren't always the best means of communication. Reception is rarely as good as suggested by the various service providers. Even if you have phoned your attorney a dozen times, always leave your name and number. "Hi, it's me, just asking about my case again. Call me. (click)" That probably won't get you the results you wanted. It's a good idea to say your name and phone number at least twice during any message you leave with your lawyer.
10. When you are in court, remember that you're in a place where you don't want to be, surrounded by lots of other folks who don't want to be there either. Be prepared to wait. If you're court appearance is set for 9:00 a.m., be aware you might not get heard until that same afternoon, depending on the number of cases on the court's calendar that day. Asking to have your case called early may help, but only if you have a real need, such as a doctor's appointment or serious transportation problems. Others in court may have those same issues. Your needs (getting back to work, for example), while important to you, are no more important to the court than those of others.
Q: I'm charged with a misdemeanor. What will happen with my case?
If you are charged with a misdemeanor. A conviction could result in a sentence of up to one year in county jail, fines, or other punishment. In most instances, depending on the charges and prior record, a guilty plea will result in informal probation for a period of two to three years. The terms of probation could require a waiver of Fourth Amendment rights against unreasonable searches and seizures. If your charges involved alcohol, you will be required to refrain or abstain from alcohol. If your charges involve domestic violence, you must complete an Alternatives to Violence class. Other terms and conditions may be imposed by the judge.
You have a right to a trial within 30 days of your arraignment or the entry of a plea, whichever is later if you are in custody. If you are not in custody, you have a right to a trial within 45 days of arraignment or plea.
Frequently, multiple counts are dismissed by the District Attorney when a guilty plea is entered to one or more remaining counts. Depending on the facts of your case, this could be to your advantage. If you wish to enter a plea of guilty you should understand that you must waive the following rights:
You have a right to a speedy and public trial by jury on the charges. At a jury trial twelve members of the community are selected from a large pool of potential jurors. They determine your guilt or innocence based only on the evidence. You cannot be convicted unless each and every juror is convinced of your guilt beyond a reasonable doubt.
You have right to see, hear, and have your attorney ask questions of any witnesses who would testify against you. This is called your right to confront the witnesses.
You have a right to use the subpoena power of the court to call into court witnesses on your behalf.
You have a right to remain silent (right against self-incrimination). By entering a plea to one or more of the charges against you, you are giving up this right and admitting one or more of the charges against you.
If you enter a plea the typical sentence is a fine and informal probation. Jail may be imposed, and is mandated for many crimes, such as being under the influence of drugs (11550 H&S), and driving while intoxicated (23152 VC) with prior convictions for the same. Jail sentences for most violations typically run from 5 to 90 days, although some may be longer depending on individual circumstances. You will also be entitled to credit of up to one-third off your jail sentence for working in jail and following the rules. If your conviction is for a non-violent crime, and your jail sentence is for 20 days or less, you may be eligible for the Alternative Work Program. This would allow you to serve your time without going to jail. Any fines that may be imposed can be satisfied by monthly payments of not less than $50.00 per month.
Q: I'm charged with a felony. What will happen in my case?
Every felony charge is serious. Conviction of a felony has life-long consequences in most instances. For example, if convicted of any felony, you will be forbidden from owning a firearm for the rest of your life. You may lose your right to vote, hold public office, or sit on any jury. A felony conviction for a sex-related offense or arson will result in a life-long registration requirement. A felony drug conviction will result in a registration requirement that will last for at least five years after your discharge from probation or parole, depending on your sentence.
A felony conviction always has the potential to subject you to a term in state prison. Most felonies have a three-tiered sentencing structure. For most felonies, the possible prison terms are 16 months, 2 or 3 years. The low term, called the mitigated term, is no less than 16 months for virtually all felonies. The mid-term, or presumptive term is 2 years, and the upper or aggravated term is 3 years. Which term you may receive, if any, will be determined by the judge at the time of sentencing after he has read and considered a pre-sentence report prepared by the probation department. That report will be an outline of your crime(s), your criminal history, if any, social factors, and other relevant information, including a statement from you about the recent offense.
In most cases, defendants are eligible for probation. That doesn't mean probation will be granted, only that it is possible, or perhaps likely. Probation for felony cases is rarely less than three years and can be up to five years. Standard terms usually include reporting in writing to the probation officer monthly, finding and keeping a steady job, obeying all laws, paying fines and fees, performing some community service, staying away from drugs and alcohol, testing for drugs and alcohol, search conditions for yourself, your home and your vehicle, and in most instances some county jail time. Jail terms typically run from 60 to 180 days, but some are less and others are more. Each case is different.
Some felony convictions may prevent the defendant from receiving probation. Most so-called "strikes" are not eligible for probation, and certainly those involving firearms or great bodily injury are precluded from receiving probation. That means in nearly all cases if you are convicted of a strike offense where a weapon was used or injury inflicted, you won't be eligible for probation and a prison term will be imposed.
Probation eligibility is also limited if you have two or more previous felony convictions. Those convictions don't make you ineligible for probation, but limit the judge to granting probation only where the crime itself or its circumstances are unusual and the interests of justice would be served by a grant of probation. As you might guess, that doesn't happen very often, but it does happen.
Finally, some felonies may result in life in prison for many years, such as so-called "Three Strikes" cases. And of course, capital murder cases may result in the punishment of death.
Most felony convictions however do not result in a prison sentence. Far more people are granted probation, and complete probation, than go to prison.
Q: I missed my court date. What do I do now?
Contact your attorney immediately. He or she may be able to put you back on the court calendar in the near future so any warrant issued for you can be recalled and you won't be arrested. But that's not always possible. If it isn't, your best bet is to contact your local law enforcement agency and voluntarily surrender yourself. You'll be brought back before the judge with a couple of days (you'll be in custody unless you post bail) and you can explain your situation to the judge. If you truly have a good excuse for missing the court date, you may be released. And by the way, " my car broke down" or "I couldn't get a ride" doesn't qualify as a good excuse in most courts. The obligation to be present when ordered is yours alone. Making a speedy effort to get back in court usually looks good to the judge. Blowing off a court appearance, then doing nothing about it for weeks will usually get you into, and keep you in custody. "Custody" is a nice word for "jail."
Q: I got arrested for XXX and so did a friend of mine. He only got probation and no jail. I'll get the same, right?
Wrong. You might get the same, but no two cases, and no two defendants are exactly alike. If you and that other guy are twins with identical crimes, histories and personalities, you might get the same. Otherwise, don't count on it.
Q: My attorney advised me to plead guilty. I don't want to. What should I do?
Attorneys are required to be honest with the client, even if that means your attorney has reviewed your case and doesn't see a viable defense. Sometimes pleading in your only option other than going to trial and likely being convicted. There's lots of considerations as to whether you plead to one count so others will be dismissed, or plead to a lesser offense, or go to trial. You have to evaluate those options, and the risks. While your attorney is also obligated to defend you, he or she is also obligated to give you the best advised based on his or her experience. If your attorney gives you an "offer" in your case, that is, a disposition that has been suggested by the prosecution, it doesn't mean he or she is demanding or even suggesting you accept that offer. Your attorney is required by law and professional ethics to pass that offer to you, as well as his or her advice about it. Remember that whether you plead guilt or no contest to any charge in any case is entirely up to you.
Q: My attorney says that my witnesses won't help my case, but I think they will. What's up with that?
There are several types of witnesses. For example, if you have a witness who knows you and the kind of person you are, and doesn't believe you did the crime charged, the only thing that witnesses might testify about is your character. And depending on the type of case, that type of testimony may or may not be relevant, or even allowed. And many witnesses didn't really "witness" anything, but only heard about it from another source. That's called hearsay, and is generally not allowed at trial. So not all witnesses have any particular value. Same is true for five people who all would testify about the same thing in the same way. That's called cumulative, and only one or two might testify other than all five. The court would likely limit the testimony of the third, fourth or fifth witnesses, since they aren't going to add anything new, just more of the same. Cases aren't won or lost based on the number of witnesses for either side. It's the content of the testimony and evidence that wins or loses cases.
Q: I'm in charge of my own case and my attorney should do what I tell him to do, right?
Your attorney should listen to you and consider your requests, but he or she isn't obligated to what you want. That's why you're not representing yourself, but relying on your attorney for advice and competent representation in court. Most of the decisions about your case are up to your attorney. You may not agree, but that's the law. What witnesses to call, if any, what theory of defense to use, what evidence to suggest or motions to file, are all decisions that are completely up to your attorney. Your input may be important, and your attorney should talk with you about those things, but the decision is up to the attorney. However, there are three decisions that are yours and yours alone. They are:
1. Do I ask for a court trial or a jury trial? In a jury trial, the jury decides the facts of the case, and the judge determines the law that applies. In a court trial, the judge acts as both the finder of fact and the determiner of law. If your case hinges on strictly a legal question, a court trial may be best. If it's a question of fact, a jury trial may best serve your interests. Every case is different, so talk with your attorney about this.
2. Do I testify at my trial? There are many reasons to testify or not. In some cases, the only way to present your side of things is to testify. But remember that as a defendant, you don't need to prove anything about your case. The burden of proof is always on the prosecution (DA) to prove that you are guilty beyond a reasonable doubt. If you and your lawyer think the prosecution hasn't proven their case by the time they finish their side of things, you might not want to testify. Cross-examination is a scary thing for many defendants. And you might have something in your past (prior convictions for crimes involving moral turpitude, which means convictions involving inherent dishonesty) that would come out if your testify. Again, every case is different and you'll want to discuss this with your attorney. Your lawyer will advise you, but the actual decision about whether you testify or not is entirely up to you.
3. Do I enter a guilty plea? Again, your attorney will advise you. But at the end of the day, your attorney will likely pack up the briefcase and go home. You might not. Your attorney is experienced in the court and dealing with cases like yours. Listen to his or her advice. But the decision to enter a guilty plea is always entirely up to you and what is in your best interests.
Q: What's Proposition 36 all about?
Proposition 36 was passed by the voters in California a few years ago, and came into law as Penal Code Section 1210.1. It says that if you are convicted of a non-violent drug possession offense, whether felony or misdemeanor, you should get probation, drug counseling and therapy and not go to jail or prison. Whether the program is successful or not hasn't yet been determined. But there is a built-in limitation in this law. First, the drug offense must not involve sales, manufacturing or anything other than a simple possession or a crime associated with the possession or use of drugs. Get busted for 1/4 gram of meth and a glass pipe and being under the influence of that drug, and nothing else, you'll likely be entitled to the provisions of Prop 36. Get busted for the same things and being under the influence of the meth while driving, you won't be eligible. Why? Driving under the influence of drugs (or alcohol) is not considered a simple drug possession offense. It involves other criminal conduct (driving under the influence, not just being under the influence). Get busted with 2 grams in four bindles and a gram scale in your glovebox, you'll probably be charged with possession for sales. If you're convicted, no Prop 36. The law says the criminal charges must be non-violent drug possession only. Even add driving with a suspended license, or no license in the same case, and you're not eligible for Prop 36. A few other things might limit Prop 36 eligibility too. Prior strikes, no matter how long ago, combined with a prison term in the past five years makes you ineligible. There's more, but you get the idea. Prop 36 requires about one year of counseling, and at least 6 months of "aftercare" or follow-up supervision. And like other probation cases, you'll have to provide body fluid samples to test frequently, and be subject to a search clause. But if you complete the program, whether after a felony or misdemeanor drug possession conviction, your charges will be dismissed and removed from your record. (You will still be forbidden from firearm possession if convicted of a felony, and your crime can still be used as a prior in some instances.)
Q: When I was arrested, the officer didn't read me my rights. My case will be dismissed, right?
Probably not. Most people believe that before making an arrest, a police officer must read this list of rights to the suspect. Not so. These rights must be read to an individual ONLY if the officer intends to ask questions of an individual who is in custody. If it is prior to arrest, the officer most likely won't advise you of these rights. So you should know them.
Collectively, these rights are called the Miranda warning because of the 1966 Supreme Court decision, Miranda v. Arizona. When Ernesto Miranda was arrested and questioned by the police, the information he gave them was used against him at his trial. This was a direct violation of the Fifth Amendment of the Bill of Rights. Miranda appealed, claiming that his rights were violated. The Supreme Court agreed; since then, most everyone is read the Miranda warning upon arrest. But if the officer does not question you, he or she has no duty to advise you of these rights. They only apply when you are in custody and the officer intends to question you about your alleged crime. For example, an officer can stop you casually on the street, tell you you can leave at any time, and ask you any questions he or she wants. You are not detained and therefore don't have to be advised of the rights under Miranda. Similarly, if a law enforcement officer calls you on the phone at home, he or she can ask you any questions about anything, whether they are questions that may tend to solicit incriminating answers or not, and not be required to advise you under Miranda.
Miranda ONLY applies if you are IN CUSTODY or not otherwise reasonably free to leave and not answer questions, AND the officer asks you questions about your potential IMMEDIATE violations of law. Remember: If an officer questions you and you are not under arrest, not otherwise detained, and are free to leave or stop the questioning at any time, the officer is not required to advise you of these rights. Should he or she fail to do so, and you answer questions, your responses can and undoubtedly will be used against you in court. Your right to remain silent is absolute. If you give it up, it cannot be retrieved later. Miranda also does not apply when you volunteer information to the police even if you are in custody. For example, you get arrested, you're placed in a patrol car, not advised of your rights, and on the way to jail you say "I really don't know what all the fuss was about. I only broke his windows, I didn't steal any money." Friend, that will certainly be used against you in court.
Think carefully before agreeing to speak with law enforcement and answering any questions. If an officer doesn't prepare a written statement that you sign at the time of questioning, it does not mean that your statements might not return to harm you in criminal court. His or her recounting of what you said may still be used, whether reduced to writing or not, if you waive your right to remain silent. Officers frequently record conversations, either with your knowledge or without. Many carry small recording devices, or use mobile audio video devices which can be activated remotely, while the recording is actually occurring in the patrol car. This is legal, and can further harm you if you choose to answer questions when asked by law enforcement.
You have the right to remain silent and refuse to answer any questions. This means you do not have to say ANYTHING to an officer, except perhaps to identify yourself. Of course, failing to answer simple questions may make the officer more suspicious, and provide him or her with more reasons to detain you for "investigation" and thus prolong your detention.
Anything you say can and will be used against you in a court of law. Never underestimate this. If you think you're doing the right thing by answering the officer's questions, don't be surprised if those answers are presented out of context, or even as admissions of guilt in a criminal proceeding. Take this part of the warning absolutely literally. In most instances, except for identifying yourself, say NOTHING about your actions, presence or involvement, if any. You will be in a better position to defend you actions later if you follow this advice.
You have a right to stop answering my questions at any time. Use this right. If you decide to answer questions, and think you're getting into an area where you should remain silent, shut up. Just tell the officer "I don't want to answer any more questions." He or she must stop any further interrogation and ask NO FURTHER questions. Ideally, except for identifying yourself, you've answered no questions anyway. But if you did and suddenly realize you may have not said the right thing, it's time to invoke your rights and be silent. It may save you much grief later.
You have a right to a lawyer before speaking to me, to remain silent until you can talk to him or her, and to have your lawyer present when you are being questioned. This means that before you answer ANY questions at all, you have a right to speak with an attorney first. Again, this is ALWAYS the best advice the officer can give to you, and the only advise you should take. Just say, "Officer, I wish to speak to an attorney before I speak with you." That's all it takes. Again, you might be delayed in being released from custody, or it might take a while for your attorney to show up, but the wait will ultimately be worth it, and could make the difference between spending only a few hours in jail, or much, much, much longer. If you're under 18, you also have a right to have a parent present with you before any questions are asked. The officer does not have to advise you that you have a right to have a parent present; you must ask for it. Any decision to just go ahead and talk is a waiver of this right, and will not protect you later if you decide you should have asked for a lawyer or parent.
If you want a lawyer but cannot afford one, one will be provided to you without cost. The Court will appoint an attorney to represent you at your first court appearance, provided you ask for one and are qualified for court-appointed counsel (this depends on your income level and perhaps some other factors).
Do you understand each of these rights I have explained to you? If you don't, just say so. If you do, also say so. But the next question is the most important of all.
With these rights in mind, are you willing to answer my questions now without an attorney present?
( YOU SHOULD ALWAYS ANSWER "NO!")
If you feel your rights have been violated, file a written complaint with the police.
Q: How do I answer police questions?
1. What you say to the police is important. What you say can and usually will be used against you, and it can give the police an excuse to arrest you, especially if you are uncooperative or aggressive toward a police officer.
2. You don't have to answer a police officer's questions, in most cases, but you must show your driver's license, registration and proof of insurance when stopped in a car. In most situations, you can't legally be arrested only for refusing to identify yourself to a police officer. However, failure to provide adequate information about your identity, after being stopped for a vehicle code violation, can give the officer reason to arrest you rather than release you an a citation. In most instances, you should provide adequate identification, but don't answer any other questions.
3. If you're not on probation or parole with search conditions as a consequence of your release, you can always refuse to a search of your home or vehicle. If you consent to a search, it can affect your rights later. If the police say they have a search warrant, ASK TO SEE IT. Remember that the police have no right to search you or anyone else without a warrant, unless you are on probation or parole with a search condition, or upon a lawful arrest (lawful is the operative word here!). Further, if that search is subsequent to arrest, it can only extend to that area with your IMMEDIATE control. That usually means that area within which you are confined (it's also called the "arm's reach" rule, but usually means within the immediate area where you are when arrested; that includes the interior of a vehicle, if that's where you were moments before your arrest.)
If you lie to an officer, you may be arrested for that. Lying to an officer, like giving a false name or address, is a crime. It may be considered that the lie is providing false information, which is a violation of California Vehicle code section 31. Additionally, the officer might arrest you if you lie and it delays or obstructs him or her in the performance of his duty (Penal Code Section 148). However, simply refusing to provide information, which you might have, that otherwise would allow an officer to perform his or her duty faster if you had provided the information, is not against the law. You have no duty to provide the police with information other than your name and perhaps simple identifying information. You need not provide information on other individuals, and failure to do so is not a violation of law.
If You are Stopped for Questioning:
1. It's not a crime to refuse to answer questions, other than who you are and where you live, but refusing to answer other than those can make the police suspicious about you and prolong the police contact. You can't be arrested solely for refusing to identify yourself is you are not in violation of any other law. There must be some other violation of law wherein the police would be able to issue to you a citation or otherwise arrest you, and you refusal to identify yourself becomes an issue regarding the issuance of that citation..
2. Police may do a "pat-down" if they suspect you have a weapon. Don't resist (that would be a separate crime), but make it clear that you don't consent to the search.
3. Ask if you are under arrest. If you are, you have a right to know exactly why. Demand to be taken before a magistrate immediately.
4. Do not physically resist the officers. That will certainly lead to your arrest, and additional criminal charges.
Strangely enough, the police do not have to advise you of your Constitutional rights (per Miranda) unless you are (1) detained, such that a reasonable person in the same circumstances would not feel he or she is free to leave and (2) suspected of committing a crime or other violation of law. For example, the police could call you at home and ask hundreds of questions about your involvement in criminal activity, without advising you of your rights per Miranda. Why? You are not detained nor in custody. Same with a brief encounter on the street, where, for instance, you've parked your car and are walking down the sidewalk. A cop approaches you and requests a moment of your time. He doesn't cause you any great delay, is not threatening, and asks a couple of questions, that may, or may not, elicit incriminating responses. Miranda is not required. You are not in custody, are free to leave or refuse to answer, and the law says if you stop, answer the questions, and later they are used against you, that's just fine. The question always is what would a reasonable person (read "conservative moron") believe under the same situation. Must you stop and answer the cop's questions, or feel free to say "I don't want to speak with you" and walk on? If the later is true, anything you say can be used against you, and will probably be admitted.
If You are Stopped in Your Car (or someone else's car...):
1. Upon request, show them your driver's license, registration, and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause. To protect yourself, make it clear that you do not consent to a search. Even if you have "nothing to hide," if asked to permit a search of your vehicle say "NO." You cannot be lawfully arrested for simply refusing to consent to a search. You have a right to refuse in most cases.
2. If you're given a ticket, sign it; otherwise you can be arrested and taken to jail for refusing to do so. You can always fight the case in court later.
3. If you're suspected of driving under the influence (DUI) and refuse to take a blood, urine or breath test, your driver's license may be suspended, even if later found not guilty of DUI. You may face further punishment for refusing to take a chemical test to determine your blood alcohol level. Remember that driving is a privilege, not a right, and anytime you drive a vehicle you are impliedly consenting to such a test if you are stopped for suspicion of driving under the influence.
If You're Arrested or Taken to the Police Station or Jail:
1. You have the right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don't give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best. You may find that you actually want to talk to the police. You want to "tell your side of it" and if only you could explain, you would be released. Such is rarely true. Resist the temptation to talk. Remember, under these circumstances, you are the suspect, and the police assume you are guilty. Despite how friendly some officers can be, the police are not your friends at this time. PROTECT YOUR RIGHTS NOW. LATER WILL BE TOO LATE.
2. Ask to see a lawyer immediately. If you can't pay for a lawyer, you have a right to a free one, and should ask the police how the lawyer can be contacted. Don't say anything without a lawyer.
3. Within a reasonable time after your arrest, or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen to the call to the lawyer.
4. Sometimes you can be released without bail, or have bail lowered. You must be taken to court on the next court day after your arrest.
5. Do not make any decisions in your case until you have talked with a lawyer.
If the Police Come to Your Home:
1. If the police knock and ask to enter your home, you don't have to admit them unless they have a warrant signed by a judge. If you are on probation or parole, the police may have a right to enter and search your home without a warrant.
2. In some emergency situations (like when a person is screaming for help inside, or when the police are chasing someone) officers are allowed to enter and search your home without a warrant.
If you are arrested, the police can search you and the area near you. If you are inside, that usually means just the room you are in.
We all recognize the need for effective law enforcement, but we should also understand our own rights and responsibilities in relationship to the police. Everyone, including minors, has the right to courteous and respectful police treatment, at least until your conduct proves otherwise. If you feel your rights have been violated, don't try to deal with the situation at the scene. Discuss the matter with an attorney afterwards, or file a complaint with the Internal Affairs division of the agency involved.
The above is based on guidelines developed by the American Civil Liberties Union,
Providing criminal defense and other services within the Courts of Lake County, California since 1996,
e-mail: attorney@lakelaw.net
Many people find visiting a lawyer can be an intimidating experience. You come to the lawyer's office to discuss a personal problem that has impacted your life. Let's face it: Most people don't consult a lawyer when everything is going well. Perhaps you've been arrested for driving under the influence, or some other law violation. Conviction of a crime can result in fines, and imprisonment that can range from a few days to many years. That's why every case should be carefully considered, and you should be fully informed of the possible consequences or a plea or conviction. As a former law enforcement officer, Doug Rhoades has the experience and understanding to provide competent, insightful defense for your case.
At the Law Office of Douglas E. Rhoades, our goal is to assist you in solving your legal matter in the most competent, courteous, and cost-effective manner. Rather than intimidate, we want you to know that we truly are here to help you, and keep your costs to a minimum.
In many legal matters, time is very important. Certain filing deadlines must be observed to protect and preserve your rights. Whatever your legal matter, don't delay in seeking our advice.
At the Law Office of Douglas E. Rhoades, we provide a full range of legal services in a competent and cost-effective manner.
CRIMINAL LAW: If you have been charged with a crime, you should call a lawyer as soon as possible. The prosecution of a criminal case may move swiftly, and time is of the essence in preparing your defense. Whether you have violated any law, to protect your rights it is important that you make no statements to anyone, particularly the police, until you have spoken with your lawyer. This cannot be emphasized too strongly. Once you have voluntarily waived your right to remain silent, any statement you make can, and most always will be used against you in court. The desire to "clear up" the case by providing information and telling your story to officers is very strong. Most defendants believe if they could just tell their side of the story, the whole matter might be resolved and no prosecution will occur. Such is rarely true. You have a right to speak with an attorney before any questioning in the investigation of any crime. Demand that right. NEVER waive it.
FAMILY LAW: Some marital dissolutions, commonly called divorces, are more amicable than others. However, many issues may arise about property, support and custody of your children, and division of assets and obligations. There may be serious tax consequences resulting from the wrong actions in a dissolution. You should be fully informed each step of the way.
One of the first questions someone with a potential legal problem must ask is whether he or she really needs a lawyer. This may surprise you (especially coming from an attorney!) but you may not need a lawyer to handle some simple legal matters.
For example, if you have a dispute with a neighbor over damage to your property, and that damage or loss is less than $7,500.00, your best solution may be Small Claims Court. Someone seeking protection from his or her spouse or domestic partner can file papers to prohibit domestic violence without a lawyer, and without a filing fee. These papers, complete with instructions are provided free of charge by the Superior Court Clerk's Office.
Even a very simple dissolution of marriage may be handled without a lawyer, but there may be unseen consequences to the lay person. You may need to protect your right to future spousal or child support, or to protect your right to some community property assets, such as retirement plans or home equity.
Although a lawyer may not need to represent you in your case, it is most always to your benefit to consult with a lawyer before determining any course of legal action.
Doug Rhoades is a native Californian, and a resident of Lake County since 1962. A graduate of local schools, he received his Bachelor of Arts degree from Sonoma State University and his Juris Doctor from Empire College School of Law in Santa Rosa, California, graduating cum laude. Prior to the practice of law, he served for more than twenty years with the Lake County Sheriff's Department, as a deputy and sergeant. He has been active in local community organizations, such as Lakeport Rotary, Big Valley Lions, Hartley Masonic Lodge, and the Lake County Arts Council where he served as president for more than 2 years. He is a former member of the Kelseyville Unified School District Board of Trustees, the Lake County Peace Officers Association, the Northern California Training Officers Association, and the California Association of Police Training Officers. He co-authored the training manual for law enforcement published by the Commission on Peace Officer Standards and Training of California.
As a client, your responsibilities include informing your lawyer of the facts and circumstances of your case as you know them. You should provide all documents relative to your case to your lawyer, and keep your lawyer advised of your phone number and address at all times.
If we may be of assistance to you, please contact us at your earliest opportunity. Thank you for your interest!
All of the above offices are open to the public Monday through Friday, 8:00 a.m. to 1:00 p.m. only.
Back to Top
Directions to the Sheriff's Department
Recent local arrests, inmates presently in custody, current felony warrants and more information is available at www.lakesheriff.com
Lakeport Police Department
DIRECTIONS TO FACILITIES
Four of the five courts of Lake County are located in Lakeport. These are Departments 1 through 3 and Department A. Deparment 4 is located in Clearlake.
Lake County Courthouse and District Attorney's Office
The Courthouse is at 255 North Forbes Street in Lakeport. It contains the courts and the court clerk's offices. To reach the courthouse from south of Lakeport, take Highway 29 north to the Lakeport Boulevard off ramp. Turn right onto Lakeport Boulevard and go east to the stop sign. Turn left onto Main Street, and travel north approximately 1/2 mile to 2nd Street. Turn left onto 2nd Street and go west 1 block to Forbes.
To reach the courthouse from north of Lakeport, take Highway 29 south to the Lakeport 11th Street off ramp. Turn left at the stop sign onto 11th Street. Go east on 11th 1 mile to Forbes. Turn right on Forbes and go south 7 blocks to the courthouse.
The District Attorney's office is one block west, immediately behind the Lake County Courthouse.
South Civic Center
Superior Court Department 4 is located in the South Civic Center at 7000-A South Center Drive, Clearlake. To reach this court, take Highway 53 north or south to the intersection with Old Highway 53. Turn East at the traffic signal toward Wal-Mart/McDonald's. At the first stop sign, turn left onto Dam Road Extension. At the next stop sign, proceed straight and around the left curve at Oak Hill School onto Civic Center Drive. The second building on your left contains the courtroom.
Lake County Probation Department
Lake County Probation is located at 201 South Smith Street in Lakeport. From south of Lakeport take Highway 29 to Lakeport Boulevard. Turn right onto Lakeport Boulevard and immediately left onto Bevins. Go approx. 1/2 mile to stop sign and turn left onto Martin Street. Go two blocks and turn right onto South Smith. It is a one-way street. Parking is available on your left. The office for Mendo-Lake Alternative Services is also at this location.
Lake County Sheriff's Department
The Sheriff's Department is located at 1220 Martin Street in Lakeport. From south of Lakeport take Highway 29 to Lakeport Boulevard. Turn right onto Lakeport Boulevard and immediately left onto Bevins. Go approx. 1/2 mile to stop sign and turn left onto Martin Street. Go up and over the small hill approximately 1/4 mile. The Sheriff's Department is on your right.
Lake County Jail
The Lake County Jail, also known as the Hill Road Correctional Facility is located on Helbush Drive in Lakeport. From south of Lakeport, take Highway 29 north to Park Way and exit. Turn right at the stop sign onto Park Way headed east. At the next stop sign (very close) turn left onto Hill Road East. Go approximately 1.5 miles to Hill Road (just before Sutter Lakeside Hospital) and turn left. Go under the freeway overcrossing and turn right onto Helbush Drive.
From Upper Lake or Mendocino area, take Highway 29 to the Nice-Lucerne Cutoff (Rodman) exit. At the stop sign, turn left and go under the freeway overcrossing. Go approximately 500 feet to the intersection of Westlake, Nice-Lucerne Cutoff and Lakeshore Boulevard. From the Northshore area, take the Nice-Lucerne Cutoff toward Lakeport. Turn right onto southbound Lakeshore Boulevard. Go to Hill Road (approx. 1/2 mile) and turn right. Go past Sutter Lakeside Hospital and turn right onto Hill Road East. Go under the freeway overcrossing and turn right onto Helbush Drive.
Lakeport Police Department
From north or south of Lakeport, take Highway 29 to the 11th Street off ramp. Turn east toward Main Street, and go 1 mile to Forbes Street. Turn right (south) on Forbes and go two blocks to the corner of 9th and Forbes.
Clearlake Police Department
Take Highway 53 to Olympic Drive. Turn west onto Olympic and proceed past the first stop sign at Burns Valley Road. Go another 3/4 mile to the corner of Olympic and Lakeshore Drive. The Police Department is next to City Hall on your right.
Wednesdays @ 9:00 a.m. & 1:30 p.m.
Monday calendars for all courts are heard on Tuesday following a Monday holiday, such as Memorial or Labor Day. Friday calendars in all Departments are heard on Thursdays when the next day is a legal holiday.*
Mondays and Fridays are "calendar days" in all courts. Short hearings and routine matters are held those days. Jury trials are conducted in all court Tuesday through Thursday of each week, usually commencing at 8:15 a.m. on Tuesdays, and 9:00 a.m. on Wednesday and Thursdays. Specific schedules are set for each trial. Based upon courtroom availability and other schedules, any matter may be specially set on other days and times. Consult the court for information on your specific case schedule. If you are ordered to appear in court, failure to appear in that court at the time ordered may result in forfeiture of your bail or bond, or revocation of your release on your written promise to appear, and cause the issuance of an arrest warrant for you. If you have an emergency and cannot appear as ordered, you should contact the specific court immediately.
The Lake County Courts and Court Clerks Office observe all federal and state holidays, as well as two "judicial"* holidays. On these days the courts are not in session and the clerk's offices are closed. They are:
January 1st, New Year's Day;
Christmas Day (December 25).
Any of the above holidays that fall on a Saturday are observed on the previous Friday. Holidays that fall on a Sunday are observed the following Monday.
Here's the 10 essential rules for making your court appearance:
1. Be on time. Being late (or not showing up at all) is very rarely excused, and will likely result in a warrant issuing for your failure to appear and being taken into custody. If you are free on bond, it will be forfeited and your bail will go up. To avoid this, don't be on time. Be early.
2. Be in the right court. Check the summons (citation) or letter you received to be sure you're in the right place on the right day. Doesn't help if you're in Lakeport at the Courthouse when you case is called at the Clearlake Court 25 miles away.
3. Dress appropriately. Don't wear shorts or tank tops. Men should wear long pants and a shirt. Women should not wear revealing blouses or tops. Medium length skirts or pants are recommended. T-shirts are okay, but any questionable words or symbols on the shirt may cause you to be removed from court until you return in acceptable clothes. Play it safe. Coming to court when you're charged with driving under the influence wearing a "Budweiser" shirt is probably not a good idea. Clean clothes are preferred. Also, leave your hat or cap in the car. They're not allowed in court at all.
4. Be polite. Court can be rough on lots of folks, who may be scared, nervous or angry. Why make it any harder than necessary?
5. Do NOT bring young children to court. Babies cry, toddlers wander and will distract you and the court from the important proceedings. Find a friend, a sitter, daycare, grandma or anyone else who can tend your children for the few hours you're in court. Also, if you have kids who might need to be picked up from school while you are in court, make arrangements for someone to do that. Even though your citation or letter might say you have court at 8:15 or 9:00 a.m., its possible (and sometimes likely) that you will be there well into the afternoon. "I have to pick up my child from school" doesn't get you priority, and possibly makes you look like someone who can't plan ahead. You need to concentrate on what's going on, and getting the correct information. You do not need to worry about changing diapers or taking paper clips out of your child's mouth or your child standing at a bus stop while the judge tells you your next court date. If you miss that, well, see #1 above.
6. When your case is called, make your presence known. Approach the counsel tables and wait until you are told what to do or where to sit. When the judge asks questions, answer loudly enough to be heard. There will probably be a court reporter there, and he or she needs to hear your answers to the judge's questions, not just see your head nod or shake. Again, polite answers are best. "Yes, sir" or "Yes, Your Honor" are always accepted as are "No, sir" or "No, Your Honor." You're dealing with someone who can put you in jail, so why not be polite?
7. You will likely be asked if you want to talk to a lawyer. If you have any doubts or questions at all about your case or the charges against you, tell the judge you want to talk with an attorney. If you can't afford private counsel, the court will appoint a lawyer for you. If you think you can afford to hire your own attorney, the court will give you time to do so before your next court appearance.
8. You'll probably be told to come back at a later time. Be sure you get the date, time and location for your next appearance. If you get the wrong date, time or place, you might not be there when you case is called, and again, see #1 above.
9. If an attorney is assigned to represent you, contact him or her as soon as possible after court. If you leave a message with your appointed counsel, be sure to include a telephone number where you can be reached, and tell the attorney the time and date of your next court appearance. Answering machines aren't perfect. Be sure to speak slowly and clearly if you leave a message. Attorneys can't return calls to numbers they can't decipher or names they can't understand. Leaving a message for your lawyer without leaving your name and phone number is waste of time for you and tghe attorney. By the way, cell phones aren't always the best means of communication. Reception is rarely as good as suggested by the various service providers. Even if you have phoned your attorney a dozen times, always leave your name and number. "Hi, it's me, just asking about my case again. Call me. (click)" That probably won't get you the results you wanted. It's a good idea to say your name and phone number at least twice during any message you leave with your lawyer.
10. When you are in court, remember that you're in a place where you don't want to be, surrounded by lots of other folks who don't want to be there either. Be prepared to wait. If you're court appearance is set for 9:00 a.m., be aware you might not get heard until that same afternoon, depending on the number of cases on the court's calendar that day. Asking to have your case called early may help, but only if you have a real need, such as a doctor's appointment or serious transportation problems. Others in court may have those same issues. Your needs (getting back to work, for example), while important to you, are no more important to the court than those of others.
Q: I'm charged with a misdemeanor. What will happen with my case?
If you are charged with a misdemeanor. A conviction could result in a sentence of up to one year in county jail, fines, or other punishment. In most instances, depending on the charges and prior record, a guilty plea will result in informal probation for a period of two to three years. The terms of probation could require a waiver of Fourth Amendment rights against unreasonable searches and seizures. If your charges involved alcohol, you will be required to refrain or abstain from alcohol. If your charges involve domestic violence, you must complete an Alternatives to Violence class. Other terms and conditions may be imposed by the judge.
You have a right to a trial within 30 days of your arraignment or the entry of a plea, whichever is later if you are in custody. If you are not in custody, you have a right to a trial within 45 days of arraignment or plea.
Frequently, multiple counts are dismissed by the District Attorney when a guilty plea is entered to one or more remaining counts. Depending on the facts of your case, this could be to your advantage. If you wish to enter a plea of guilty you should understand that you must waive the following rights:
You have a right to a speedy and public trial by jury on the charges. At a jury trial twelve members of the community are selected from a large pool of potential jurors. They determine your guilt or innocence based only on the evidence. You cannot be convicted unless each and every juror is convinced of your guilt beyond a reasonable doubt.
You have right to see, hear, and have your attorney ask questions of any witnesses who would testify against you. This is called your right to confront the witnesses.
You have a right to use the subpoena power of the court to call into court witnesses on your behalf.
You have a right to remain silent (right against self-incrimination). By entering a plea to one or more of the charges against you, you are giving up this right and admitting one or more of the charges against you.
If you enter a plea the typical sentence is a fine and informal probation. Jail may be imposed, and is mandated for many crimes, such as being under the influence of drugs (11550 H&S), and driving while intoxicated (23152 VC) with prior convictions for the same. Jail sentences for most violations typically run from 5 to 90 days, although some may be longer depending on individual circumstances. You will also be entitled to credit of up to one-third off your jail sentence for working in jail and following the rules. If your conviction is for a non-violent crime, and your jail sentence is for 20 days or less, you may be eligible for the Alternative Work Program. This would allow you to serve your time without going to jail. Any fines that may be imposed can be satisfied by monthly payments of not less than $50.00 per month.
Q: I'm charged with a felony. What will happen in my case?
Every felony charge is serious. Conviction of a felony has life-long consequences in most instances. For example, if convicted of any felony, you will be forbidden from owning a firearm for the rest of your life. You may lose your right to vote, hold public office, or sit on any jury. A felony conviction for a sex-related offense or arson will result in a life-long registration requirement. A felony drug conviction will result in a registration requirement that will last for at least five years after your discharge from probation or parole, depending on your sentence.
A felony conviction always has the potential to subject you to a term in state prison. Most felonies have a three-tiered sentencing structure. For most felonies, the possible prison terms are 16 months, 2 or 3 years. The low term, called the mitigated term, is no less than 16 months for virtually all felonies. The mid-term, or presumptive term is 2 years, and the upper or aggravated term is 3 years. Which term you may receive, if any, will be determined by the judge at the time of sentencing after he has read and considered a pre-sentence report prepared by the probation department. That report will be an outline of your crime(s), your criminal history, if any, social factors, and other relevant information, including a statement from you about the recent offense.
In most cases, defendants are eligible for probation. That doesn't mean probation will be granted, only that it is possible, or perhaps likely. Probation for felony cases is rarely less than three years and can be up to five years. Standard terms usually include reporting in writing to the probation officer monthly, finding and keeping a steady job, obeying all laws, paying fines and fees, performing some community service, staying away from drugs and alcohol, testing for drugs and alcohol, search conditions for yourself, your home and your vehicle, and in most instances some county jail time. Jail terms typically run from 60 to 180 days, but some are less and others are more. Each case is different.
Some felony convictions may prevent the defendant from receiving probation. Most so-called "strikes" are not eligible for probation, and certainly those involving firearms or great bodily injury are precluded from receiving probation. That means in nearly all cases if you are convicted of a strike offense where a weapon was used or injury inflicted, you won't be eligible for probation and a prison term will be imposed.
Probation eligibility is also limited if you have two or more previous felony convictions. Those convictions don't make you ineligible for probation, but limit the judge to granting probation only where the crime itself or its circumstances are unusual and the interests of justice would be served by a grant of probation. As you might guess, that doesn't happen very often, but it does happen.
Finally, some felonies may result in life in prison for many years, such as so-called "Three Strikes" cases. And of course, capital murder cases may result in the punishment of death.
Most felony convictions however do not result in a prison sentence. Far more people are granted probation, and complete probation, than go to prison.
Q: I missed my court date. What do I do now?
Contact your attorney immediately. He or she may be able to put you back on the court calendar in the near future so any warrant issued for you can be recalled and you won't be arrested. But that's not always possible. If it isn't, your best bet is to contact your local law enforcement agency and voluntarily surrender yourself. You'll be brought back before the judge with a couple of days (you'll be in custody unless you post bail) and you can explain your situation to the judge. If you truly have a good excuse for missing the court date, you may be released. And by the way, " my car broke down" or "I couldn't get a ride" doesn't qualify as a good excuse in most courts. The obligation to be present when ordered is yours alone. Making a speedy effort to get back in court usually looks good to the judge. Blowing off a court appearance, then doing nothing about it for weeks will usually get you into, and keep you in custody. "Custody" is a nice word for "jail."
Q: I got arrested for XXX and so did a friend of mine. He only got probation and no jail. I'll get the same, right?
Wrong. You might get the same, but no two cases, and no two defendants are exactly alike. If you and that other guy are twins with identical crimes, histories and personalities, you might get the same. Otherwise, don't count on it.
Q: My attorney advised me to plead guilty. I don't want to. What should I do?
Attorneys are required to be honest with the client, even if that means your attorney has reviewed your case and doesn't see a viable defense. Sometimes pleading in your only option other than going to trial and likely being convicted. There's lots of considerations as to whether you plead to one count so others will be dismissed, or plead to a lesser offense, or go to trial. You have to evaluate those options, and the risks. While your attorney is also obligated to defend you, he or she is also obligated to give you the best advised based on his or her experience. If your attorney gives you an "offer" in your case, that is, a disposition that has been suggested by the prosecution, it doesn't mean he or she is demanding or even suggesting you accept that offer. Your attorney is required by law and professional ethics to pass that offer to you, as well as his or her advice about it. Remember that whether you plead guilt or no contest to any charge in any case is entirely up to you.
Q: My attorney says that my witnesses won't help my case, but I think they will. What's up with that?
There are several types of witnesses. For example, if you have a witness who knows you and the kind of person you are, and doesn't believe you did the crime charged, the only thing that witnesses might testify about is your character. And depending on the type of case, that type of testimony may or may not be relevant, or even allowed. And many witnesses didn't really "witness" anything, but only heard about it from another source. That's called hearsay, and is generally not allowed at trial. So not all witnesses have any particular value. Same is true for five people who all would testify about the same thing in the same way. That's called cumulative, and only one or two might testify other than all five. The court would likely limit the testimony of the third, fourth or fifth witnesses, since they aren't going to add anything new, just more of the same. Cases aren't won or lost based on the number of witnesses for either side. It's the content of the testimony and evidence that wins or loses cases.
Q: I'm in charge of my own case and my attorney should do what I tell him to do, right?
Your attorney should listen to you and consider your requests, but he or she isn't obligated to what you want. That's why you're not representing yourself, but relying on your attorney for advice and competent representation in court. Most of the decisions about your case are up to your attorney. You may not agree, but that's the law. What witnesses to call, if any, what theory of defense to use, what evidence to suggest or motions to file, are all decisions that are completely up to your attorney. Your input may be important, and your attorney should talk with you about those things, but the decision is up to the attorney. However, there are three decisions that are yours and yours alone. They are:
1. Do I ask for a court trial or a jury trial? In a jury trial, the jury decides the facts of the case, and the judge determines the law that applies. In a court trial, the judge acts as both the finder of fact and the determiner of law. If your case hinges on strictly a legal question, a court trial may be best. If it's a question of fact, a jury trial may best serve your interests. Every case is different, so talk with your attorney about this.
2. Do I testify at my trial? There are many reasons to testify or not. In some cases, the only way to present your side of things is to testify. But remember that as a defendant, you don't need to prove anything about your case. The burden of proof is always on the prosecution (DA) to prove that you are guilty beyond a reasonable doubt. If you and your lawyer think the prosecution hasn't proven their case by the time they finish their side of things, you might not want to testify. Cross-examination is a scary thing for many defendants. And you might have something in your past (prior convictions for crimes involving moral turpitude, which means convictions involving inherent dishonesty) that would come out if your testify. Again, every case is different and you'll want to discuss this with your attorney. Your lawyer will advise you, but the actual decision about whether you testify or not is entirely up to you.
3. Do I enter a guilty plea? Again, your attorney will advise you. But at the end of the day, your attorney will likely pack up the briefcase and go home. You might not. Your attorney is experienced in the court and dealing with cases like yours. Listen to his or her advice. But the decision to enter a guilty plea is always entirely up to you and what is in your best interests.
Q: What's Proposition 36 all about?
Proposition 36 was passed by the voters in California a few years ago, and came into law as Penal Code Section 1210.1. It says that if you are convicted of a non-violent drug possession offense, whether felony or misdemeanor, you should get probation, drug counseling and therapy and not go to jail or prison. Whether the program is successful or not hasn't yet been determined. But there is a built-in limitation in this law. First, the drug offense must not involve sales, manufacturing or anything other than a simple possession or a crime associated with the possession or use of drugs. Get busted for 1/4 gram of meth and a glass pipe and being under the influence of that drug, and nothing else, you'll likely be entitled to the provisions of Prop 36. Get busted for the same things and being under the influence of the meth while driving, you won't be eligible. Why? Driving under the influence of drugs (or alcohol) is not considered a simple drug possession offense. It involves other criminal conduct (driving under the influence, not just being under the influence). Get busted with 2 grams in four bindles and a gram scale in your glovebox, you'll probably be charged with possession for sales. If you're convicted, no Prop 36. The law says the criminal charges must be non-violent drug possession only. Even add driving with a suspended license, or no license in the same case, and you're not eligible for Prop 36. A few other things might limit Prop 36 eligibility too. Prior strikes, no matter how long ago, combined with a prison term in the past five years makes you ineligible. There's more, but you get the idea. Prop 36 requires about one year of counseling, and at least 6 months of "aftercare" or follow-up supervision. And like other probation cases, you'll have to provide body fluid samples to test frequently, and be subject to a search clause. But if you complete the program, whether after a felony or misdemeanor drug possession conviction, your charges will be dismissed and removed from your record. (You will still be forbidden from firearm possession if convicted of a felony, and your crime can still be used as a prior in some instances.)
Q: When I was arrested, the officer didn't read me my rights. My case will be dismissed, right?
Probably not. Most people believe that before making an arrest, a police officer must read this list of rights to the suspect. Not so. These rights must be read to an individual ONLY if the officer intends to ask questions of an individual who is in custody. If it is prior to arrest, the officer most likely won't advise you of these rights. So you should know them.
Collectively, these rights are called the Miranda warning because of the 1966 Supreme Court decision, Miranda v. Arizona. When Ernesto Miranda was arrested and questioned by the police, the information he gave them was used against him at his trial. This was a direct violation of the Fifth Amendment of the Bill of Rights. Miranda appealed, claiming that his rights were violated. The Supreme Court agreed; since then, most everyone is read the Miranda warning upon arrest. But if the officer does not question you, he or she has no duty to advise you of these rights. They only apply when you are in custody and the officer intends to question you about your alleged crime. For example, an officer can stop you casually on the street, tell you you can leave at any time, and ask you any questions he or she wants. You are not detained and therefore don't have to be advised of the rights under Miranda. Similarly, if a law enforcement officer calls you on the phone at home, he or she can ask you any questions about anything, whether they are questions that may tend to solicit incriminating answers or not, and not be required to advise you under Miranda.
Miranda ONLY applies if you are IN CUSTODY or not otherwise reasonably free to leave and not answer questions, AND the officer asks you questions about your potential IMMEDIATE violations of law. Remember: If an officer questions you and you are not under arrest, not otherwise detained, and are free to leave or stop the questioning at any time, the officer is not required to advise you of these rights. Should he or she fail to do so, and you answer questions, your responses can and undoubtedly will be used against you in court. Your right to remain silent is absolute. If you give it up, it cannot be retrieved later. Miranda also does not apply when you volunteer information to the police even if you are in custody. For example, you get arrested, you're placed in a patrol car, not advised of your rights, and on the way to jail you say "I really don't know what all the fuss was about. I only broke his windows, I didn't steal any money." Friend, that will certainly be used against you in court.
Think carefully before agreeing to speak with law enforcement and answering any questions. If an officer doesn't prepare a written statement that you sign at the time of questioning, it does not mean that your statements might not return to harm you in criminal court. His or her recounting of what you said may still be used, whether reduced to writing or not, if you waive your right to remain silent. Officers frequently record conversations, either with your knowledge or without. Many carry small recording devices, or use mobile audio video devices which can be activated remotely, while the recording is actually occurring in the patrol car. This is legal, and can further harm you if you choose to answer questions when asked by law enforcement.
You have the right to remain silent and refuse to answer any questions. This means you do not have to say ANYTHING to an officer, except perhaps to identify yourself. Of course, failing to answer simple questions may make the officer more suspicious, and provide him or her with more reasons to detain you for "investigation" and thus prolong your detention.
Anything you say can and will be used against you in a court of law. Never underestimate this. If you think you're doing the right thing by answering the officer's questions, don't be surprised if those answers are presented out of context, or even as admissions of guilt in a criminal proceeding. Take this part of the warning absolutely literally. In most instances, except for identifying yourself, say NOTHING about your actions, presence or involvement, if any. You will be in a better position to defend you actions later if you follow this advice.
You have a right to stop answering my questions at any time. Use this right. If you decide to answer questions, and think you're getting into an area where you should remain silent, shut up. Just tell the officer "I don't want to answer any more questions." He or she must stop any further interrogation and ask NO FURTHER questions. Ideally, except for identifying yourself, you've answered no questions anyway. But if you did and suddenly realize you may have not said the right thing, it's time to invoke your rights and be silent. It may save you much grief later.
You have a right to a lawyer before speaking to me, to remain silent until you can talk to him or her, and to have your lawyer present when you are being questioned. This means that before you answer ANY questions at all, you have a right to speak with an attorney first. Again, this is ALWAYS the best advice the officer can give to you, and the only advise you should take. Just say, "Officer, I wish to speak to an attorney before I speak with you." That's all it takes. Again, you might be delayed in being released from custody, or it might take a while for your attorney to show up, but the wait will ultimately be worth it, and could make the difference between spending only a few hours in jail, or much, much, much longer. If you're under 18, you also have a right to have a parent present with you before any questions are asked. The officer does not have to advise you that you have a right to have a parent present; you must ask for it. Any decision to just go ahead and talk is a waiver of this right, and will not protect you later if you decide you should have asked for a lawyer or parent.
If you want a lawyer but cannot afford one, one will be provided to you without cost. The Court will appoint an attorney to represent you at your first court appearance, provided you ask for one and are qualified for court-appointed counsel (this depends on your income level and perhaps some other factors).
Do you understand each of these rights I have explained to you? If you don't, just say so. If you do, also say so. But the next question is the most important of all.
With these rights in mind, are you willing to answer my questions now without an attorney present?
( YOU SHOULD ALWAYS ANSWER "NO!")
If you feel your rights have been violated, file a written complaint with the police.
Q: How do I answer police questions?
1. What you say to the police is important. What you say can and usually will be used against you, and it can give the police an excuse to arrest you, especially if you are uncooperative or aggressive toward a police officer.
2. You don't have to answer a police officer's questions, in most cases, but you must show your driver's license, registration and proof of insurance when stopped in a car. In most situations, you can't legally be arrested only for refusing to identify yourself to a police officer. However, failure to provide adequate information about your identity, after being stopped for a vehicle code violation, can give the officer reason to arrest you rather than release you an a citation. In most instances, you should provide adequate identification, but don't answer any other questions.
3. If you're not on probation or parole with search conditions as a consequence of your release, you can always refuse to a search of your home or vehicle. If you consent to a search, it can affect your rights later. If the police say they have a search warrant, ASK TO SEE IT. Remember that the police have no right to search you or anyone else without a warrant, unless you are on probation or parole with a search condition, or upon a lawful arrest (lawful is the operative word here!). Further, if that search is subsequent to arrest, it can only extend to that area with your IMMEDIATE control. That usually means that area within which you are confined (it's also called the "arm's reach" rule, but usually means within the immediate area where you are when arrested; that includes the interior of a vehicle, if that's where you were moments before your arrest.)
If you lie to an officer, you may be arrested for that. Lying to an officer, like giving a false name or address, is a crime. It may be considered that the lie is providing false information, which is a violation of California Vehicle code section 31. Additionally, the officer might arrest you if you lie and it delays or obstructs him or her in the performance of his duty (Penal Code Section 148). However, simply refusing to provide information, which you might have, that otherwise would allow an officer to perform his or her duty faster if you had provided the information, is not against the law. You have no duty to provide the police with information other than your name and perhaps simple identifying information. You need not provide information on other individuals, and failure to do so is not a violation of law.
If You are Stopped for Questioning:
1. It's not a crime to refuse to answer questions, other than who you are and where you live, but refusing to answer other than those can make the police suspicious about you and prolong the police contact. You can't be arrested solely for refusing to identify yourself is you are not in violation of any other law. There must be some other violation of law wherein the police would be able to issue to you a citation or otherwise arrest you, and you refusal to identify yourself becomes an issue regarding the issuance of that citation..
2. Police may do a "pat-down" if they suspect you have a weapon. Don't resist (that would be a separate crime), but make it clear that you don't consent to the search.
3. Ask if you are under arrest. If you are, you have a right to know exactly why. Demand to be taken before a magistrate immediately.
4. Do not physically resist the officers. That will certainly lead to your arrest, and additional criminal charges.
Strangely enough, the police do not have to advise you of your Constitutional rights (per Miranda) unless you are (1) detained, such that a reasonable person in the same circumstances would not feel he or she is free to leave and (2) suspected of committing a crime or other violation of law. For example, the police could call you at home and ask hundreds of questions about your involvement in criminal activity, without advising you of your rights per Miranda. Why? You are not detained nor in custody. Same with a brief encounter on the street, where, for instance, you've parked your car and are walking down the sidewalk. A cop approaches you and requests a moment of your time. He doesn't cause you any great delay, is not threatening, and asks a couple of questions, that may, or may not, elicit incriminating responses. Miranda is not required. You are not in custody, are free to leave or refuse to answer, and the law says if you stop, answer the questions, and later they are used against you, that's just fine. The question always is what would a reasonable person (read "conservative moron") believe under the same situation. Must you stop and answer the cop's questions, or feel free to say "I don't want to speak with you" and walk on? If the later is true, anything you say can be used against you, and will probably be admitted.
If You are Stopped in Your Car (or someone else's car...):
1. Upon request, show them your driver's license, registration, and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause. To protect yourself, make it clear that you do not consent to a search. Even if you have "nothing to hide," if asked to permit a search of your vehicle say "NO." You cannot be lawfully arrested for simply refusing to consent to a search. You have a right to refuse in most cases.
2. If you're given a ticket, sign it; otherwise you can be arrested and taken to jail for refusing to do so. You can always fight the case in court later.
3. If you're suspected of driving under the influence (DUI) and refuse to take a blood, urine or breath test, your driver's license may be suspended, even if later found not guilty of DUI. You may face further punishment for refusing to take a chemical test to determine your blood alcohol level. Remember that driving is a privilege, not a right, and anytime you drive a vehicle you are impliedly consenting to such a test if you are stopped for suspicion of driving under the influence.
If You're Arrested or Taken to the Police Station or Jail:
1. You have the right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don't give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best. You may find that you actually want to talk to the police. You want to "tell your side of it" and if only you could explain, you would be released. Such is rarely true. Resist the temptation to talk. Remember, under these circumstances, you are the suspect, and the police assume you are guilty. Despite how friendly some officers can be, the police are not your friends at this time. PROTECT YOUR RIGHTS NOW. LATER WILL BE TOO LATE.
2. Ask to see a lawyer immediately. If you can't pay for a lawyer, you have a right to a free one, and should ask the police how the lawyer can be contacted. Don't say anything without a lawyer.
3. Within a reasonable time after your arrest, or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen to the call to the lawyer.
4. Sometimes you can be released without bail, or have bail lowered. You must be taken to court on the next court day after your arrest.
5. Do not make any decisions in your case until you have talked with a lawyer.
If the Police Come to Your Home:
1. If the police knock and ask to enter your home, you don't have to admit them unless they have a warrant signed by a judge. If you are on probation or parole, the police may have a right to enter and search your home without a warrant.
2. In some emergency situations (like when a person is screaming for help inside, or when the police are chasing someone) officers are allowed to enter and search your home without a warrant.
If you are arrested, the police can search you and the area near you. If you are inside, that usually means just the room you are in.
We all recognize the need for effective law enforcement, but we should also understand our own rights and responsibilities in relationship to the police. Everyone, including minors, has the right to courteous and respectful police treatment, at least until your conduct proves otherwise. If you feel your rights have been violated, don't try to deal with the situation at the scene. Discuss the matter with an attorney afterwards, or file a complaint with the Internal Affairs division of the agency involved.
The above is based on guidelines developed by the American Civil Liberties Union,
Related items:
At The Law Offices of Majid Hashemi, we believe that trust is an essential ingredient in our relationship with our clients.
- 1541 Ocean Avenue, Suite 200, Santa Monica, CA 90401
- 1 (310) 445-2373
Law Office of Hieu Vu is located in the Heart of Orange County. Mr. Vu has successfully handled over hundreds of Criminal/DUI cases of all types ranging from hit and run, evading police.
- 18002 Irvine Blvd #108 Tustin, CA 92780
- +1 (714) 589-3063
Free consultation with the personal injury attorney at the Law Office of Edward J. Babbitt, APC, in San Diego, California.
- 401 West A St #1650 San Diego, CA 92101
- (619) 543-1789
The Law Offices of Michael E. Cindrich, located in San Diego, California, has earned a reputation for providing trustworthy advice and effective
- 110 West C Street Suite 1400 San Diego, CA 92101
- (619) 262-2500
Scott Mitchell Law Offices provides quality legal services in the areas of bankruptcy and family law for people in Modesto, Stockton and surrounding
- Rancho Cordova, CA 95670
- (209) 365-7477
California
company, product and service directory
company, product and service directory
Business Network 2008-2024
All rights reserved
All rights reserved