Brought to you by Colorado DUI Drunk Driving Defense
Hatboro DWI Lawyers
- Marvin Gold:
If I am arrested, to what
extent should I cooperate with police?
Other than chemical testing for suspected Driving Under
the Influence (now called Driving After Imbibing, DAI) I recommend that
you politely refuse to discuss anything with the police other than your
name, address, date of birth and social security number. When police
advise you that, "anything that you say can and will be used against
you," and so called Miranda Warnings, that is exactly what they mean.
Your cooperation will be used against you.My experience is that persons arrested almost always say much more than they should to the police and almost always later regret their cooperation.
Police may indicate that if you cooperate, they will "put in a good word for you." Most defendants are much better off saying nothing, neither offending nor helping the police and thereby preserving the confidentiality of any information or evidence which has not come to light. After all, the police do not sentence you, the judge does.
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to the top Should
I waive (give up the right to have) my Preliminary Hearing? Should
I go to my Preliminary Hearing without an attorney?Except
for ARD (Pennsylvania's pre-trial program for first offenders
called the Accelerated Rehabilitative Disposition) eligible first
time DAI offenders in Montgomery County only (where Defendants receive
an additional two month license suspension
for not waiving their Preliminary Hearing), the answer is no, you
absolutely should not waive your Preliminary Hearing nor should you
go without
an attorney.Your Preliminary Hearing is your best (and typically only) pre-trial opportunity to cross-examine the witnesses against you and assess their credibility, how they hold up to questioning, what they know and whether their testimony is likely to hurt you at trial. Without that opportunity it is usually impossible to accurately predict the outcome of a trial. It would be like predicting the outcome of a football game where you haven't seen the opposing team play.
Since Defendants are usually sentenced more harshly if found guilty after trial than if they had pled guilty, Defendants should not rush a trial without a well-founded belief that they will be found not guilty.
Also, witnesses are not as rehearsed and well prepared at a Preliminary Hearing as they are likely to be at trial when they have discussed their testimony several times with law enforcement personnel. It is therefore typically very beneficial to transcribe the prosecution witnesses' testimony at the Preliminary Hearing before they polish it and coordinate it with other witnesses for trial.
The prosecution's case at a Preliminary Hearing is often presented by the arresting officer and not by a prosecutor. The police officer's typical lack of trial sophistication often presents defense opportunities to obtain admissions which will not be available later.
The average person can not effectively cross-examine at a Preliminary Hearing. Between being nervous, inexperienced and unaware of rules of evidence and trial strategies, they have almost no opportunity to be effective. The art of cross-examination is as much that of stating a fact and challenging the witness to disagree as it is the art of asking appropriate questions. It is difficult to become effective at cross-examination without many, many practice opportunities.
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to the top Should
I take a court reporter to the Preliminary Hearing?Absolutely
yes. Without a court reporter, there will be no record of the admissions
or contradictions obtained; no way to prove that anyone said what
you know that you heard; no way to prove at trial their testimony
has been
changed substantially from what it was at the Preliminary Hearing;
no way to contradict the witnesses at trial by their prior inconsistent
testimony.Also, in the event that the District Justice makes a bad decision at the Preliminary Hearing by binding over specific criminal charges which were not adequately supported at the Preliminary Hearing, the defense would be unable to obtain review of that decision (by filing a Motion for Habeus Corpus and to Quash the Criminal Complaint) without a transcript of the Preliminary Hearing as an exhibit to the Petition.
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a Defendant testify at their own Preliminary Hearing?Generally,
no. The Rules of Criminal Procedure do not permit a Defendant's testimony
to have any beneficial effect on the outcome of the Preliminary Hearing.
The District Justice is not permitted to believe a Defendant's testimony
in any way that would contradict the testimony of any prosecution
witness. The testimony of all prosecution witnesses is accepted as
absolutely
true for purposes of the Preliminary Hearing no matter what the defense
might say.A Defendant's testimony at a Preliminary Hearing can, however, haunt them later if it appears inconsistent with their testimony at trial.
So a Defendant can only hurt themselves by testifying at a Preliminary Hearing ... they can not help themselves.
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to the top Can
I have an existing record of a criminal conviction expunged because
it interferes with my career opportunities?Generally
speaking, no as to convictions, but yes as to records of arrests which
did not lead to convictions and yes as to "ARDs". The common belief
that a conviction record can be expunged after many years of "not getting
into trouble" is incorrect except for:- Convictions of "underage drinking" after one reaches age 21 and;
- Defendants who reach age 70 and have not been arrested, prosecuted, imprisoned or supervised for ten years and;
- When the Defendant has been dead for three years (seriously ... this is found at Section 9122(b)(2)) of the Crimes Code.
- ARD arrests may not be expunged for certain sex crimes when the victim was under age eighteen (an ARD for sex crimes against juveniles is unlikely in any event), but otherwise ARDs are normally expunged upon completion of the probationary period.
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to the top Can
a judge sentence me to ARD without the District Attorney's consent?No.
ARD (Accelerated Rehabilitative Disposition) is a criminal disposition
involving fines, probation and other non-prison penalties (safe driving
school, community service) available for many first time offenders
as to non-violent offenses. The most common ARD is for a first offense
of drunk driving. ARD is not considered a conviction and the charges
are dismissed upon completion of the probation and the other terms.
Consequently, as a non-conviction, the record of the arrest is subject
to expungement.ARD is entirely at the discretion of the County District Attorney. A District Attorney in one county can offer ARD for a category of crime where an adjacent county would not offer ARD.
A Judge can not sentence a Defendant to ARD without the District Attorney's consent. The District Attorney can withhold their consent for any reason or no reason such as the reason, "I'm tough on crime so re-elect me to office." The Judge can sentence to "Section 17" for certain drug offenses without the District Attorney's consent. Section 17 is quite similar to ARD, being fines and probation without conviction. It applies to only "certain" drug offenses.
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to the top Do
I have any choice concerning which Judge will handle my case?No.
Although the difference between judges as to both the likelihood of
conviction and the severity of sentence upon conviction can be quite
significant, a Defendant has no choice in this regard. Typically, the
Defense does not learn the identity of their trial judge until the
morning of trial. It is the luck of the draw.
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to the top Should
I have a trial by Judge (a "waiver trial") or by (Judge and) Jury?Jury
trials take much more time. Consequently, legal fees are typically
higher. A trial that by Judge would take a few hours, by Jury may
take a few days.However, a Judge will convict if one person, the Judge, thinks you are guilty. A Jury will only convict if all twelve jurors conclude beyond a reasonable doubt that you are guilty.
Judges become cynical as a result of their job. They believe that they have been lied to so many times by so many people that they are unwilling to believe very much of anything. A Judge, in my opinion, will convict if they think that you are "probably guilty" while a Jury will only convict if they are satisfied that you are "guilty beyond a reasonable doubt."
It is quite a substantial difference. Your chances of being acquitted (found not guilty) are much better with a Jury than with a Judge (subject to variations among Judges and, less predictably, variations among Juries).
Ninety-nine plus per cent of the time, a Defendant is better served by a Jury trial if they can afford the extra cost.
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to the top If
I am arrested with co-defendants, should I stay in contact with the
co-defendants?Police
and prosecutors often discourage co-defendants from having any contact
with each other prior to trial.In my opinion, if you get into trouble together with someone else, you should do your best to stay in communication with them so that you can get out of trouble with them.
The worst thing for a co-defendant is to worry about whether other co-defendants are blaming them for something in exchange for sentencing leniency and thereby wondering whether they should blame somebody else in return. This often leads to co-defendants blaming each other and providing the prosecution with evidence which the prosecution would not have if each Defendant relied upon their right under the Fifth Amendment of the United States Constitution to refrain from incriminating themselves.
If you are arrested with one or more co-defendants, I recommend that all co-defendants meet with the same attorney at the same time and place to determine whether it is in their best interests to present a common front or whether to have separate representation. It may occur that an attorney would be obligated to either not represent all defendants, or possibly not represent any Defendant after meeting with all of them because of the potential of conflict of interest. A conflict of interest would occur when learning something about one Defendant would be helpful to another Defendant but harmful toward the Defendant who provided the information.
Notwithstanding the potential for a conflict of interest and the potential that the first attorney might be disqualified, I recommend that defendants who get into trouble together do their best to get out of trouble together.
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to the top Should
I hire a defense attorney who is a former District Attorney or Federal
Prosecutor?For
an attorney, working as a prosecutor presents significant learning
opportunities. Such opportunities assist an attorney in working with
the system.However, any attorney who would be willing to prosecute or defend may lack commitment and not really be "on your side".
Back
to the top - William McElroy: State statutes specify levels of blood alcohol content at which a person is presumed to be under the influence of intoxicating liquor.