I AM STOPPED OR INVESTIGATED BY POLICE REGARDING INVOLVEMENT IN A CRIME. WHAT SHOULD I DO?
1. Never–absolutely NEVER–give up your right to remain silent! Remember: Police are allowed to lie to you, but if you lie to them your words will be used against you in court! Police are trained in interrogation. They will often lie and claim to have evidence against you when they have none or say someone else said you committed a crime when no one did. Police use all sorts of mind games to trick you into incriminating yourself. They are better at these games than you are, because they use them all the time. The only you can win their game by refusing to play and never giving up your right to remain silent.
2. If you are questioned by police about involvement in a crime, state only: “I refuse to answer any questions and I demand an attorney now!” You may have to say this more than once before they stop harassing you, but so long as you are being questioned, you should say nothing else. Just continue repeating: “I refuse to answer any questions and I demand an attorney now!” No matter what they ask you, no matter how they may threaten you–and they likely will– continue saying that and NOTHING else. Regardless of whether you are guilty or innocent, do not talk. You may not be looking for trouble, but the police usually are. By talking you make it easier for them to find it. So don’t talk.
I suggest you watch the following lecture by a law professor on the topic of never talking to police. Though long, it is extremely well done and replete with excellent information that can keep you out of trouble:
3. Never consent to a search of your car, your house, your apartment or anything else. Granting permission to search only makes it easier for the police to make a case against you. If they ask for permission to search, politely say no. If you refuse permission they will likely threaten to get a search warrant, a drug dog, or whatever. Tell them to go ahead. Giving permission to search can only hurt you and it can never help.
4. If police ask you to come to the station to answer questions about a crime where you are a suspect, do not go. Do not answer any questions over the telephone and do not agree to take a polygraph, or lie detector, test either.
5. If you are arrested, go along peacefully. Do not run. Do not fight. Do not talk back to the officers. Just go quietly and keep your mouth shut. While in jail, do not talk about your case with your cell mates, guards, family or anyone else, except your criminal defense attorney. In addition, phone calls from the jail are usually recorded, so don’t say anything on the phone unless you want it played in court.
6. Do not spend more money on your bail bondsman than on your lawyer. A bail bondsman can only give you temporary freedom until trial. Depending on the circumstances, a lawyer may be able to get you permanent freedom.
I THINK I MIGHT BE CHARGED WITH A FELONY. WHAT SHOULD I EXPECT WILL HAPPEN TO ME?
After you are arrested you will either be held in jail or released pending your next court appearance. Pretrial release will be either with or without bond, though most people charged with felonies will have to pay a bond to get out of jail. A bond is an amount of money to be paid to the court to secure your release. The purpose of a bond is to ensure you appear for trial. The amount of bond required for people charged with felonies varies widely. Low level felonies typically require bonds between $2,500.00 and $5,000.00, though these figures may go up or down substantially depending upon the specifics of your case. If you are not or probation, parole, and have no suspended sentences, Arkansas law gives you a right to a bond for any crime except capital murder. If you are on parole, you may be held on what is called a “white warrant” and denied bond completely.
In addition, because most people do not have sufficient cash on hand to pay the full amount of their bonds, they usually go through “bail bondsmen.” Bail bondsmen are businesses that post the full amount of a bond for 10% of the total plus various surcharges and other fees. For example, someone using a bail bondsman can usually make a $2,500.00 bond by paying about $300.00. You should, however, understand that the money you pay a bail bondsman is his fee for taking the risk that you may not show up for court, in which case he will have to either bring you to court or forfeit the entire amount of the bond. So you will not get any of the money you pay a bondsman back, even if you show up in court as ordered. It is also important to not to spend more money on your bail bondsman than on your lawyer. All a bail bondsman can do is get you temporary freedom before trial. A good lawyer might be able to get you permanent freedom.
Once you post bond, you will be given an “arraignment” date. An arraignment is a court appearance where you will formally be charged with a crime. Be absolutely certain you appear at the correct time, date and place for your arraignment. Failure to appear in court in a felony case can land you in prison for up to 10 years and result in fines up to $10,000.00 even if you beat the original charge. Before going to your arraignment you should hire an experienced criminal defense lawyer if you can afford one. In the event you cannot afford a private lawyer, the court will appoint you a public defender when you are arraigned. At the arraignment you will be given a piece of paper laying out your specific charges called a “felony information.” You will then be advised of your rights and should enter a plea of not guilty (regardless of your actual guilt or innocence, never plead guilty at an arraignment). The felony information will assign you a case number, inform you of the specific offense or offenses you are facing, and contain a brief statement of the facts forming the basis of your charges. At your arraignment you will also be given the date and time of your next court appearance.
After the arraignment your lawyer should file a document called a “motion for discovery,” with the court clerk demanding all the prosecution’s evidence regarding your charges. The prosecutor is then required to provide him all evidence in the State’s possession, even evidence favorable to your side. After he receives your file your lawyer will be in a position to diagnose the strength of the case against you. You should then meet with him and discuss strategy.
After your lawyer has had a chance to inspect the evidence, the prosecutor usually makes him an “offer;” that is, a recommended punishment in exchange for a guilty plea. At this point you face the extremely important decision of whether to accept a negotiated plea or take the matter to a jury trial. Some lawyers insist you follow their advice about whether to accept a plea bargain, but that is not way of handling cases. As your attorney I will advise and inform you of the possible consequences of pleading as opposed to demanding a trial, but ultimately that decision is yours.
In some cases accepting a plea bargain is the only sensible thing to do. Unfortunately some lawyers are either too afraid or to lazy to take criminal cases to trial and convince their clients to plead guilty even in circumstances where the defense has a good chance of winning. The important thing here is to make sure your lawyer has a reputation for taking cases to trial and winning where the prosecution’s case is weak. Lawyers who rarely or never go to trial seldom get good outcomes for their clients. For my part, I never fear trial, I try cases often, and frequently win verdicts of not guilty or dismissals for my clients. No lawyer wins every time, but I have been very successful in obtaining positive outcomes for those facing criminal charges.
After plea negotiations between the prosecutor and defense counsel, any of several things can happen. The best outcome for you is one in which your attorney convinces the prosecutor to dismiss the charges. The second best is is that you take the case to a jury trial and win a verdict of not guilty. If a jury finds you not guilty, its decision can never be overturned and you can never be bothered by those charges again. In the event the prosecutor will not dismiss the case and it looks like the case cannot be won before jury, all your attorney can do is try to negotiate the best deal possible. Depending on the facts of your case, this may be probation, probation plus time in county jail, or even time in state prison.
This brief overview is not intended to be comprehensive. It is rather a short outline intended to lessen the fear and apprehension of someone who might be facing felony charges by cursorily explaining how the process works. Anyone actually in such a position should consult a competent criminal defense attorney as soon as possible.
I AM THINKING ABOUT HIRING A CRIMINAL DEFENSE ATTORNEY. WHAT SHOULD I KNOW?
You should also know that no attorney worth his salt can guarantee a client a good outcome. There is simply no way of accurately predicting what a court or a jury will do, and you should be very wary of any attorney who promises you good results in exchange for a high fee. There is just very little certainty in the legal profession. In addition, the substantial majority of people charged with felonies end up being convicted of something, regardless of who represents them, regardless of how much money they spend, and regardless of how hard they fight. In many cases, all an attorney can do is damage control. That is, minimize his client’s punishment.
Another fact to consider is that many so-called criminal defense attorneys rarely–sometimes even never–take cases to trial. After receiving their fees, they simply pocket the money, talk their clients into pleading guilty, and try to find new clients so they can collect more fees. Because they rarely go to trial, these attorneys do not have the respect of prosecutors and rarely get good outcomes for their clients. Attorneys who commonly take cases to trial, on the other hand, can often get prosecutors to drastically reduce charges and sometimes dismiss them entirely. Trials are very expensive and time consuming for the prosecution, and a prosecutor who loses many trials may lose his job as well. A criminal defense attorney not afraid to take cases to trial can exploit a prosecutor’s fear of trial and get better results for his clients.
Here is where I am at my best, because I try cases often and frequently win.
You should also be aware that virtually all defense attorneys require substantial money up front. This is because attorneys quickly learn that if they do not get paid up front, they usually do not get paid at all, and especially in criminal cases.
Attorneys who do not get paid at the beginning are often left with nothing for the work they have done and are sometimes even forced by the courts to continue working on their client’s case for nothing. Like in other areas of life, payment must be received before service is rendered. So if you are seeking to retain a defense attorney, be prepared to pay a substantial amount of money before he or she will begin working on the case.
CAN I AFFORD YOUR SERVICES?
Public defenders have a bad reputation, which to a large extent is undeserved. Many public defenders are excellent lawyers who care passionately about their clients. The problem is that they are overworked and underpaid. Often they have as many as 150 + clients at one time, have little time to spend on any individual case, and rarely take cases to trial. For these reasons, people represented by public defenders often do not get the best outcomes. Nonetheless, you are almost certainly better off with a public defender than with no lawyer.
I AM STOPPED FOR SUSPICION OF DRIVING WHILE INTOXICATED. SHOULD I CONSENT TO TAKE A BREATH ALCOHOL TEST?
Whether it’s in your best interests to refuse to take a breath alcohol test depends upon the circumstances. If you know you are completely sober, then by all means take the test. There’s simply no reason to be punished for Violation of Implied Consent if you can avoid it, and if you have no alcohol in your system you will have no problem passing the test. In addition, if police have sufficient evidence to convict you of Driving While Intoxicated even without the breath test–for example, a police dash cam video of you falling down drunk or other evidence of intoxication–it makes no sense to refuse the test either. After all, why be convicted of both Violation of Implied Consent and Driving While Intoxicated, when you can get off with only the latter?
If, however, you think you might be over the legal limit–which in Arkansas is 0.08%–but you look and act sober and perform well on the field sobriety tests, you might be able to beat the DWI charge by refusing. Of course, you will still be convicted of Violation of Implied Consent, but this is a much less serious charge.
You also need to understand that police do not have to prove your breath alcohol content was above the legal limit to get a conviction. All they have to do is prove you were impaired by alcohol–or any other drug–to such an extent that you cannot safely operate a motor vehicle. One way of proving this is by proffering a breath alcohol test with results over 0.08%. Another way is by producing ANY other evidence, even the arresting officer’s opinion testimony, that you were intoxicated.
In addition, understand that you can be convicted of DWI for driving while impaired on prescription medication even if you have a valid prescription for what you’re taking.
WHAT IS THE DIFFERENCE BETWEEN A FELONY AND A MISDEMEANOR? WHAT ARE LOW LEVEL FELONIES AS OPPOSED TO HIGH LEVEL FELONIES?
- Class D Felony: 0 to 6 years imprisonment; and fines up to $10,000.00
- Class C Felony: 3 to 10 years imprisonment; and fines up to $10,000.00
- Class B Felony:5 to 20 years imprisonment; and fines up to $15,000.00
- Class A Felony:6 to 30 years imprisonment; and fines up to $15,000.00
- Class Y Felony:10 to 40 years or life imprisonment;
- Capital Murder:Life-imprisonment without possibility of parole or the death penalty
DO YOU REPRESENT PEOPLE CHARGED WITH FELONIES?
I THINK I MIGHT BE IN DANGER OF PHYSICAL VIOLENCE FROM A CURRENT OR FORMER BOYFRIEND OR GIRLFRIEND, CURRENT OR FORMER SPOUSE, OR A FAMILY MEMBER; HOW CAN I GET A PROTECTION ORDER?
To get a protection order you need to prove that the opposing party poses a physical danger to you, to your property, or to your children. The mere fact that the opposing party may call you at all hours of the day, drive by your residence, show up at your job, leave notes on your car, constantly send you text messages, and so forth are generally not enough to justify an order of protection, though they may subject the person to criminal harassment charges. An order of protection requires credible evidence of physical danger.
If you believe you have such evidence, go to the county circuit court. They will have you to write out an affidavit that is, a sworn statement about what the opposing party did to justify the order. Be certain everything in your affidavit is true. Lying may subject you to criminal perjury charges. After you complete the affidavit, a judge will issue a temporary order of protection, which lasts for 30 days and takes effect as soon as a copy is served upon the opposing party by a sheriffs deputy. Within the 30 days the judge will schedule a short hearing to determine whether there exists probable cause to continue the order. Be sure to show up and testify as to any reasons why you believe the opposing party poses a danger to you. You may have witnesses testify on your behalf. You may also be represented by an attorney if you wish. The opposing party can also testify, present witnesses, and have their own attorney as well.
If the judge determines there is probable cause to continue the order, it will remain in effect for a minimum of 90 additional days and up to a maximum of 10 years. While the order is in effect, the opposing party is not allowed to go by your residence, your workplace, or contact you in any way. In addition, what they cannot do themselves, they cannot have others do for them. They cannot give you messages through third parties. They are also prohibited from owning or possessing any firearms.
Violations of the order are Class A Misdemeanors, carrying up to one year in county jail and up to a $2,500.00 fine for the first offense. Second and subsequent offenses are a felony.
I AM THINKING ABOUT GETTING A DIVORCE, WHAT WILL HAPPEN TO THE PROPERTY AND DEBT I HAVE WITH MY SPOUSE?
Property owned before marriage is non marital property and generally goes back to the party who originally owned it. Property acquired during the marriage, however, is marital property and is divided equally between the parties.
The rule of equal division applies regardless of whose name the property is in and regardless of who paid for the property. Moreover, Arkansas courts have ruled that the law providing for equal division of marital property equally does not apply to marital debt. So technically courts can divide marital debt however they want, but in most cases they do so equally, unless it can be shown the debt was incurred only by one party and/or did not confer a net benefit upon the marriage, examples might be a husband who takes out a loan to buy a fishing boat only he uses or a wife who runs up credit card debt solely to pay for romantic rendezvous with other men.
Also understand that courts are not strictly required to divide marital property equally. Rather equal division is a legal presumption that is, while 50/50 division is the norm courts may divide property in some other way if they find that equal division would be unfair in a given case. In addition, courts even have the power to divide non marital property, though this rarely occurs.
Nonetheless, equal division is followed in almost all cases. In addition, marital misconduct, such as mistreating one’s spouse, having extramarital affairs, etc. has zero bearing on division of marital property.
WHAT ARE ARKANSAS MARIJUANA LAWS LIKE?
If you have less than two prior drug convictions and are caught with four ounces or less of marijuana, you will probably be charged with a “Class A Misdemeanor.” Technically this could land you in county jail for up to one year and result in fines of up to $2,500.00, but most first or second time pot offenders caught with no more than four ounces are let off with a few hundred dollars in fines and other costs, an order to attend a drug treatment program, and perhaps community service.
Some Arkansas courts, however, demand jail time even for first and second time offenders caught with small amounts of marijuana. It largely depends on the judge.
First or second time offenders caught with more than four ounces may face felony charges for Possession of a Controlled Substance with Intent to Deliver, which carries a punishment of 0 to 6 years imprisonment and/or fines up to $10,000.00. Even if you are not a drug dealer and have the marijuana solely for personal use, Arkansas law allows prosecutors to charge you with a felony if you have over four ounces in your possession.
In addition, if you are unfortunate enough to have scales, a significant amount of cash, sandwich baggies, a pot pipe, a bong, or anything else that the police think might be drug related with you at the time your situation is much worse and you will probably find yourself facing an additional felony carrying the same level of punishment!
Things also get really ugly for marijuana users who have two or more prior drug convictions, regardless of whether the prior crimes are for marijuana or some other controlled substance. Under Arkansas law, third offence possession of marijuana is an automatic felony, carrying up to 6 years imprisonment and/or fines up to $10,000.00. This means if you have two or more prior drug convictions and are caught with any usable amount of marijuana (even a half-smoked roach in your ashtray) you will be charged with a felony.
A person unfortunate enough to be convicted of or plead guilty to this crime will likely be marked for life as a felon, loose his right to vote, lose his right to own or possess firearms, and be forever barred from many fields of employment. Incidentally, a single enlightened aspect of Arkansas drug laws is that a person cannot be prosecuted unless they possess a usable amount of controlled substance.
Exactly what counts as a usable amount has never been made completely clear by the courts. But, by way of example, one-tenth of a gram of marijuana shake in a baggie will more than likely be held insufficient to support a conviction.
For my part, I am a member of the National Organization for the Reform of Marijuana Laws (NORML) and am working to change Arkansas irrational and immoral pot policies. These laws waste huge amounts of tax payers money in enforcement and ruin the lives of countless decent and otherwise law abiding citizens, whose only crime is using a substance substantially less harmful than alcohol.
Hopefully someday things will change, but until that day gets here everyone should keep their eyes open and be warned that Arkansas pot laws are most unsavory.
I AM GETTING DIVORCED, WHAT ARE THE CHANCES OF BEING AWARDED OR ORDERED TO PAY ALIMONY IN ARKANSAS
HOW DOES A COURT DETERMINE CHILD CUSTODY?
That is, by examining every good and bad aspect of placing a child with each of the parties and weighing each against the other. There is no easy formula for making this decision, but courts look at each parent in terms of such traits as moral fitness, compassion, character, sobriety, the attitude of a newly acquired romantic partner toward the child, emotional stability, work stability, which parent lives closest to a good school, health, a parent’s attitude towards the child’s education, the parent’s home situation, whether the child will have his own room, child care arrangements, religious education, and many others.
One thing a parent wanting to win custody of their child should consider is drug and alcohol use. There is nothing wrong with having a little wine over dinner or a beer or two while watching a football game, but no judge wants to put a child with a parent who abuses drugs or alcohol. So important is this principle that if a court orders both parties in a divorce to take a drug test, which often happens, and one party tests positive, the guilty party will almost certainly lose any chance of winning custody on this basis alone!
Moreover, courts do not approve of parents who cohabit with romantic partners outside of marriage while the child is present. In fact, courts do not like parents who get new boyfriends or girlfriends after separation but before divorce. In a courts eyes, such behavior amounts to telling the child that marriage does not mean anything. In short, if you want to win custody in court, stay clean and sober, and do not date again partner until the divorce is finalized. If you simply cannot wait until the judge signs the decree before before rekindling your love life, do not introduce the child to your new partner or allow him or her to spend the night in the child’s presence.
A parent wanting to win custody should also do everything they can to show the court they care about and are involved in their child’s life. This includes going to parent/teacher conferences at your child’s school, contacting his teacher if your child gets a bad grade, helping your child with his homework, getting your child involved in extracurricular activities such as boy scouts, girl scouts, band, little league, and so forth.
Courts also generally (though not always) dislike granting custody to parents who use physical punishment. This is not to say all spanking is child abuse, but other things being equal a parent who wants to win custody should not hit their child. Restricting a child’s access to his toys or video games and “time outs” are preferred methods of punishment.
Some people believe courts almost always pick the mother when parents fight over custody, and they usually do. Nonetheless, every case is different and there are many situations where a court will rightly prefer the father.
This very brief discussion does not even scratch the surface of the many factors courts consider in making custody determinations and is intended only to provide the briefest overview of this area of the law. Anyone facing a divorce and wanting to fight for child custody should consult an experienced family practice attorney.
I HAVE BEEN CHARGED WITH DOMESTIC BATTERING, WHAT DO I NEED TO KNOW?
Generally this means you are accused of purposely or recklessly causing injury to a household or family member, including a current or former girlfriend or boyfriend (even if you do not now–and never have–lived together). Domestic Battering in the Third-Degree is a Class A Misdemeanor, meaning it is punishable by up to one year imprisonment and fines up to $2,500.00. However, misdemeanor domestic battering is more serious than most other misdemeanors. First, a person who is convicted of or who pleads guilty to this offense looses his or her right to own firearms.
Second, domestic battering records cannot be sealed and remain public records forever. Third, if you have a second domestic battering conviction within a five year period or a third conviction within a ten year period, the later conviction is an automatic Class D Felony, punishable by up to 6 years imprisonment and fines up to $10,000.00.
DO YOU ACCEPT PAYMENT PLANS?
While I regard the legal profession primarily as a way of helping people, I too have bills to pay. So while it is important that I receive full payment before a case is over, my general philosophy is that I will work hard for anyone who works hard for me.
I will, however, require at least half of my total fee plus all out of pocket costs up front so I know you are serious about retaining my services.
WHAT ARE YOUR FEES?
Criminal Charges: Generally, my minimum fee for low level felonies is $2,500.00 to $3,500.00. High level felonies will cost substantially more. I generally charge a minimum of about $750.00 for misdemeanor cases, such as Driving While Intoxicated, misdemeanor possession of marijuana, shoplifting charges, misdemeanor battery, etc.
Family Law Cases: As a rule, my minimum fee for an uncontested divorce is $600.00 plus “out of pocket costs.” These are costs that do not go to me but are paid directly to third-parties. In divorce actions, out of pocket costs include a $165.00 filing fee paid to the court as well as (generally) a $50.00 to $75.00 process fee to serve papers on the opposing party.
If the opposing party agrees to a settlement regarding child custody, child support, division of marital property, marital debt and other relevant matters, frequently no additional costs will be incurred. If the opposing party hires an attorney of their own and decides to contest the divorce on one or more of these matters, the costs may go up substantially depending upon what is at stake and how hard they fight.
Cases regarding changing child custody normally require a minimum of a $2,000.00 retainer plus out of pocket costs. In a change of custody case where child custody has already been awarded to one party, out of pocket costs include a $50.00 fee to the court to reopen the case and (usually) a $50.00 to $75.00 process fee to serve papers on the opposing party. If a case is billed by the hour, my normal rate is $200.00 an hour.
If you have an issue regarding criminal or family law, give me a call and set up a free consultation.
It will cost you nothing and may end up saving your family, your freedom, or even your life!