Criminal Law FAQ (Frequently Asked Questions)

Q: When should a person call or hire an attorney?
A: As soon as you become aware that the police or another state agency is looking for or investigating you, or if you believe that you may have committed a crime. The earlier you contact a lawyer the better. An attorney can intervene with the police and either prevent an arrest or, if you are going to be arrested, arrange for your surrender at a time and in a manner that minimizes embarrassment to you or your family. Retaining a lawyer also prevents the police from questioning you.

Q: If the person is innocent, why does he or she need a lawyer?
A: Innocent people do get accused, and convicted, of crimes. Also, people who may have committed one crime often get accused of committing additional and more serious crimes. In this country, whether you are innocent or guilty of committing a crime, you have a right to remain silent at all times. Even if you have nothing to hide, it is always better to have a lawyer learn about your accusations and speak on your behalf.

Q: What should someone do if the police want to question or arrest him or her?
A: Always be polite and cooperative. Arguing or struggling, even if you didn't do anything wrong, will never make the situation better. Don't say anything to the police except your name and other identifying information. DO NOT discuss the situation with them. Many convictions result from statements made to the police. Whether the officer speaking to you is nasty or nice, he or she is looking for evidence that can be used against you. The police, sometimes will attempt to lie or trick you in order to get you to talk. You should tell the police that you want to speak to a lawyer, and that you do not want to speak to them until you have spoken to a lawyer.

Q: What should a person expect if he or she is arrested?
A: You will be brought to the police station and "booked." This procedure will include fingerprinting and photographing and obtaining your biographical information. You will be able to make a telephone call (make it either to a lawyer or a family member who can call a lawyer and who has the funds necessary to come bail you out). Depending on the crime with which you have been charged, a bail commissioner should be able to look at your criminal record, if any, and release you from the police station. He or she will require a nominal fee and sometimes will set a bail amount. Once the bail is received by the police, you should be released. You must appear at Court at the time told to you by the police and written on your "Recognizance Form."

Q: What is bail?
A: Bail is money (sometimes other property) that is held by the Court to ensure that the person accused will return to court when he or she is required to do so. So long as the person returns to court as required, the bail will be returned at the end of the case, even if the person is ultimately found guilty and goes to jail. However, if the person does not show up for court, the bail will be forfeited and cannot be returned.

Q: Does the suspect have to put up his own bail?
A: No. Anyone can post the suspect's bail. However the person posting bail must know that if the suspect fails to show up to court the money will be forfeited.

Q: Does the money have to be cash or can it be by bond or surety?
A: A bail bond or surety is a promise to pay the amount of the bail if the suspect does not return to court when required to do so. Only a licensed bail bondsman can post a bond or surety with the court. Bondsmen are private businesses who will charge a fee to post the bond and will usually require some type of collateral (cash or property) to secure the bond. At the end of the case, assuming the suspect has shown up for court as required, the bond will be released and the collateral will be returned.

Q: If I am stopped while driving and the police officer asks me to do field sobriety tests do I have to do them?
A: The police have an absolute right to ask you to perform the tests. However, if you don't perform the tests, your refusal cannot be introduced at trial. In addition, there are no legal consequences for your failure to do the tests, i.e., you don't have your driver's license taken away from you.

Q: Should I take a breathalyzer test if I am arrested?
A: By obtaining a driver's license, you have consented to taking the breathalyzer. Therefore, if you refuse to take the breathalyzer, your driver's license will be taken away for at least ninety days. HOWEVER, breath test machines are not perfect and are very often inaccurate. They were not designed to measure someone's blood alcohol and if you blow a .08 or more, this evidence will be very very damaging against you at trial. A couple of drinks can register as a .08 so be extremely cautious before deciding to take a breathalyzer.

The State Bar does not certify any lawyer as a specialist or expert. This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.