Police Processing

After you are arrested, in most cases, you will be taken to a police station, fingerprinted and photographed.  The officers will interview you and take down your pedigree information such as name, address, date of birth, height, weight eye color. You have a right to remain silent and not make any statements about the case but providing basic truthful pedigree information is the best course of action.  Providing a false name or pedigree information is a crime called criminal impersonation and withholding pedigree information will increase your chances of bail being imposed (see below).

After being processed at the police station, in less serious cases you will be given a desk appearance ticket (“DAT”) and released. The DAT is a slip of paper directing you to appear in court on a specific date and time.  It may also have an arrest number and section of the law you are accused of violating. In more serious cases, the police will transport you to court for an arraignment.

Arraignment

The arraignment is your initial court appearance in front of a judge in a town or village court, district court, city court or criminal court. These are all considered lower criminal court’s in New  York that initially handle all criminal cases including felonies. At the arraignment, the judge will read the charges and determine whether bail should be imposed or you should be released on your own recognizance (“ROR”). You are entitled to a copy of the charges and should ask for a copy if the judge does not provide them to you.

Bail is an amount of money you, a friend or family member “post” with the court to ensure that you return to court to face the charges. Bail is not a punishment, and should only be imposed if you are a “flight risk” or charged with certain dangerous felonies. Imposing bail because the judge does not like you or the facts of the case or for some other improper reason is unconstitutional because the presumption of innocence applies at arraignment and making bail determinations.

Cash bail and bail bonds

Usually bail may be posted in two forms: in cash or by bail bond.  The bail bond amount will generally be higher than the cash amount. Bail bonds must be obtained with the help of a licensed bail bondsman who reviews the finances of the person who wants to obtain the bond to make sure he or she can pay the bondsman should you run away. The bail bondsman usually imposes a fee (usually between 5%-15%) for the bond which is how they make money.  Different bondsmen will impose different fees so the person posting the bond should call around to compare fees. If you run away after bail is posted, the person who posted the bail will forfeit the amount of the bail, you will be charged with the felony of bail jumping and a warrant will be issued for your arrest. Bail (cash or bond) is refundable at the end of the case less a court imposed percentage that the court keeps as a fee. If the case is resolved in your favor, such as dismissal on the merits or acquittal after trial, you are entitled to a refund of the full  amount of bail without any fees being imposed.

Your right to an attorney at arraignment

New York’s highest court has held that you have the right to have an attorney present at your arraignment because it is a critical stage of a criminal case. If you are charged with a felony or serious misdemeanor and find yourself at an arraignment and you are not able to have your private attorney present or provided with an attorney to speak on your behalf, you should tell the judge that you do not wish to proceed with the arraignment until you are provided with an attorney experienced in criminal  law.  If you are not sure if the charge is serious enough to warrant bail, then ask the judge if he intends to impose bail and if so, you wish to have an attorney present to argue against the imposition of bail. If you cannot afford an attorney or your private attorney is not available for the arraignment, the court must provide an experienced attorney at arraignment free of charge.  If the court refuses to provide you with an attorney and proceeds with the arraignment, you should contact an attorney who will order the transcript of the arraignment and may move to vacate any bail that was set because the judge violated your Sixth Amendment right to counsel at arraignment.  Unfortunately, many courts in upstate New York routinely violate this Sixth Amendment requirement so you should insist on having an attorney speak on your behalf at your arraignment because it could mean the difference between having bail set and going to jail  or being released on your own recognizance while the case is pending.  Your chances of getting release or lower bail is greater with an attorney because judges often have very little information before them at an arraignment and your attorney can interview you, review the charges and then argue to the judge why you should be released. Judges tend to impose bail when they have insufficient information in an attempt to “cover” themselves which makes the role of an attorney at arraignment vital. If bail is imposed and you are able to post bail, you will be released from the court or from the jail. You will then be given a date and time for your next court appearance. Contact an experienced criminal defense attorney immediately.

*The opinions expressed in this blog are not to be deemed legal advice. Each criminal case is different and you should always consult an attorney familiar with the facts and circumstances of your individual case. For a free consultation regarding your criminal case in New York call 845-876-3024.

The right to counsel and to remain silent.

If you are arrested, do not make any statements to the police and immediately request an attorney. Any statement you make will be used against you even if you think your statement is innocuous or helpful.  Be respectful, polite and simply inform the officer that you wish to speak to an attorney before you decide whether to make any statements. This request will activate several important constitutional rights. The police will often tell citizens that “it will go easier” if you make a statement and/or not involve an attorney but this is false. Neither the police, prosecutors nor court can punish you for exercising your constitutional right to an attorney or decline to make a statement.  Once you tell a member of law enforcement that you wish to speak to an attorney, all questioning must stop so do not waive your right to an attorney and insist on making that call right away.

What help can I get while I am being arrested? 

You also have a right to speak to an attorney to help you make certain decisions during an arrest.  Apart from whether to make a statement, one of the most common examples is deciding whether to take a breathalyzer or blood test in a “drunk driving”case. You may refuse to take a breathalyzer or blood test but doing so will almost certainly result in a revocation of your license for at least one year.  Because the law requires the police to take a blood or breathalyzer test within two hours, the police may declare you are refusing to take the test if you delay them. For that reason, you should immediately ask to speak to an attorney to help you decide whether to take the test or answer any questions.  Since most people carry cell phones, you should have your attorney’s phone number saved in your phone and tell the officer you wish to use your cell phone to call him. Some officers will not afford you the opportunity to speak to an attorney which might result in the test results being suppressed (thrown out) so be sure to ask to speak to an attorney upon being stopped and tell the officer that you wish to use your cell phone to call your attorney. Do not believe the myth that requesting an attorney and remaining silent “makes you look guilty.”  On the contrary, asking for an attorney and declining to provide statements makes you look smart and most police officers would tell their friends and family members to follow this advice.

Should I take a breathalyzer test?

The decision to take a breath or blood test must be decided on a case by case basis after considering several factors. The primary consideration is whether the loss of your license for one year for refusing the test is better than assisting the police prosecute you for DWI. Most often we encourage clients to take the blood or breathalyzer test if offered within two hours because there are pathways to continue driving during and after your case has been resolved.  On the other hand, the one year revocation for refusing to take the test is virtually automatic after a DMV hearing.  New York is an “implied consent” state and you agree to take a breath or chemical test at the direction of law enforcement when you obtain your driver’s license. Thus, the penalty for not “honoring” that implied consent is revocation for at least a year even if you win the underlying DWI case. However, in cases where the client has been previously arrested for DWI, the decision to take the test is more difficult because a second DWI in ten years is a felony with the possibility of going to prison for up to four years. A third DWI offense in ten years is a felony with the possibility of going to prison for up to seven years.  The sentences can also be severe if someone is seriously injured or killed. In these circumstances, it may be wiser to refuse a blood or breath test rather than assist a felony prosecution by providing a breathalyzer or blood test result.

Can I be forced to take a blood or breath test?

In some cases, the police may be authorized to take your blood or compel you to take a breathalyzer. Most often your blood is taken without your expressed consent when you are in an accident and are either unconscious or lack the capacity to consent to a blood test.  In those circumstances, the police may draw your blood under the implied consent rule so long as the blood is drawn within two hours of the police arriving at the accident. The police also have the option to seek a court order to compel you to take a test if they can satisfy a court that you were drunk and operating a motor vehicle. Seeking a court order is rarely done because of the time constraints of the two hour rule and the relative unavailability of judges to immediately review and sign such orders.

If the police don’t get a blood or breath test result from me, can I still be convicted of DWI?

Yes.  Even if the police and prosecution do not have a blood alcohol concentration result from blood or breath testing, they may still charge you with “common law” driving while intoxicated. Although harder to prove, drunk driving can be proved by the circumstances of your arrest witnessed by the officer or a civilian (including your passenger) testifying about your condition at the time of arrest. Here is a common example:

The officer testifies that he witnessed you driving erratically and pulled you over for crossing the double yellow line. Upon approaching your window to ask for your license and registration so he could write the ticket for the traffic infraction, he smelled alcohol emanating from your mouth and noticed you had glassy eyes and slurred speech. After asking you to exit the vehicle, he noticed that you staggered and were unsteady on your feet. At the point he administered a number of field sobriety tests (stand on one leg, walk a straight line, recite the alphabet, following a light with you eyes, etc) which you failed.  To further buttress a common law DWI case, motorists will often make statements in answer to  the question, “have you been drinking tonight?”

Courts have held that asking this question about how much you have had to drink, without first apprising the motorist of his right to remain silent, is permissible as part of a traffic stop investigation. As discussed above, while refusing to answer questions and asking for an attorney may seem impolite or provocative and it may feel like it makes your situation worse, in the long run, it is one of the few thing you can do to reduce your chances of getting a criminal conviction for DWI.

Don’t be afraid to assert your rights.

The truth is, if you have been drinking and driving, there is little you can do to control the situation at the arrest stage of the case.  Asking for an attorney and remaining silent will not change the police officer’s behavior. Many people fear that if they assert their rights during the arrest, the police might hold them in detention longer or even tamper with the breathalyzer test to inflate the results. While it is possible to contaminate a breath test sample, most officers will not risk their careers and criminal prosecution by falsifying test results. Furthermore, you must be brought before a judge to be arraigned (formally apprised of the charges and release conditions set) within 24 hours of being arrested. If an officer detains you because you asserted your rights, it will only damage the prosecutor’s case and subject him to disciplinary action and/or a civil rights law suit.

*The opinions expressed in this blog are not to be deemed legal advice. Each criminal case is different and you should always consult an attorney familiar with the facts and circumstances of your individual case. For a free consultation regarding your criminal case in New York call 845-876-3024.

1. Criminal Mischief

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   Ask for a public defender if you cannot afford an attorney. Under the facts you have set forth, you should have the attorney speak to the prosecutor and seek an "adjournment in contemplation of dismissal" which puts the case over for six months and then it is dismissed and sealed if there are no new arrests. Since your daughter is 16 and has no priors, the worse case scenario is a youthful offender adjudication which is not a conviction and it is supposed to be sealed; but I have heard about...

2. I'm an indigent defendant found guilty of a crime. Should the direct appeal fail, I want to be prepared for the next appeal.

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   I sympathize with your situation and direct appeals can take years. You need to speak to an experienced appellate/post conviction attorney in the jurisdiction; whether it is is state court in Florida or federal court. Sadly, there are two justice systems in the US, one for the wealthy and one for the indigent.
   1 lawyer agreed with this answer

1. Will I have trouble becoming a licensed physical therapist with one DUI on my record from when i was 21?

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   First make sure you were convicted of a crime and not the traffic violation of driving while ability impaired by alcohol [VTL 1192(1)]. If it is a criminal conviction, ask your attorney to apply for a Certificate of Relief from Civil Disabilities from the judge. This certificate does not expunge your criminal record but it prevents the state from summarily denying you a license and entitles you to a hearing if the state tries to deny you a license based on the conviction. Also, due to changes...

2. Does my criminal record from California show up in New York?

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   If you concerned about a conviction that should have been sealed or expunged showing up on your New York criminal history, my advice is to contact the NYS Division of Criminal Justice Services and request your criminal history. You may order your NYS criminal history by following these instructions: http://www.criminaljustice.ny.gov/ojis/recordreview.htm

3. HOW LONG DOES IT TAKE FOR A FELONY TO BE WIPED OFF YOUR NAME?

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   I agree that the conviction is permanent unless you can get it vacated on appeal or post-conviction motion. A conviction becomes final ninety (90) days (time to seek certiorari from the US Supreme Court) from the date that leave to appeal the order of the Appellate Division to the Court of Appeals was denied. However, you may effectively extent this time by filing an Article 440 motion. It sounds like you might have a "Padilla" claim if your attorney and/or the court that took your plea...

4. 1st time shoplifting & got Arrested. I have questions to defend myself. I cannot afford an attorney. Please help!!!!!!!!!

   Answered 29 days ago.
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   I agree with Richard, relax; it is very unlikely you will go to jail on a first offense shop lift. When you go to court inform the judge that you cannot afford an attorney and request a public defender. You will be given an opportunity to qualify for free legal services. The judge may give you a questionnaire to fill out right in court or he may adjourn the case for you to go to the public defender which is contracted to the Legal Aid Society in Nassau County (http://www.nclas.org) to see if...

5. I think i have a bench warrant for not paying a fine on a violation i live in another state but i am going to clear this up?

   Answered over 1 year ago.
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   A warrant can only be cleared/vacated by a defendant's appearance before a judge. The defendant must go to the central clerk's office in the county where his/her case is being heard. The defendant must have the following information: full name and date of birth, or date of arrest, or docket number. NYSOCA

6. 13 year old girl lives in England she is American born she's being abused by mother and she wants to come home

   Answered over 1 year ago.
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   It sounds like you need a British solicitor who specializes in family law rather than an American lawyer. If she is being physically or sexually abused you should call the police.

7. I had a copy of a colleagues ID but with my picture

   Answered over 1 year ago.
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   You do not state your immigration status and I assume you have overstayed. I agree with the other attorney; this could be a serious problem for you if you wish to stay in the country. Generally, local law enforcement does not report arrests of out of status aliens to DHS and obviously no detainer was filed or you would not have been able to ask this question. However, do not underestimate the problem just because it is a misdemeanor. I have seen clients run into immigration problems even if...

8. My neighbor has been bragging that he has not paid his property or school taxes in three years.

   Answered over 1 year ago.
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   My advice is to worry about your own tax situation. You can file a grievance every May with the tax assessor in your town to try and get your tax liability reduced. Get an appraisal of your home and then go to the tax webpage of your county to find out what your neighbors are paying based upon their assessed home values. If your county does not have a webpage with this info, it is maintained in the clerk's office or you can ask your assessor for the comps in your neighborhood. If your taxes are...

9. A 17 year old gets caught with a pair of earrings at Kmart in the bronx. She is a first time offender.

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   Under NY law retailers who are victims of shoplifting are entitled to damages even if they do not lose the items shoplifted. Usually the damages are about three times the value of the item(s) shoplifted. I would not pay any money until the case is heard in court and you can write to the retailer and ask them for an extension of time to pay. When she goes to court, she should ask the legal aid lawyer assigned to her case to ask for an ACD (adjournment in contemplation of dismissal). If the...

10. Added charges 9 months later

    Answered over 3 years ago.
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    1 attorney answer
    The weapon charge could be many things, including a new or old allegation that may have been recently filed, a mistake or there may have been conditions related to his plea that you are unaware. He needs a good criminal defense lawyer in your area to speak to prior counsel, take a careful look at his history and the court file. Call the local county bar association and ask for a list of criminal defense lawyers and then interview them.

1. My brother in law was wrongfully convicted of robbery and sentence to 25 years of jail. he was not at the scene. what to do?

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   He needs to have his attorney file his notice of appeal right away in the Appellate Division, Second Department if the trial took place in Nassau County. He should meet with an appellate attorney as soon as possible to make arrangements to order the record on appeal and to discuss both the direct appeal and the possibility of bringing a post-conviction motion. Sometimes we file a post conviction motion with or even before the direct appeal. A post-conviction motion addresses things that may...
   1 lawyer agreed with this answer

2. Does accepting a plea automatically give up my right to appeal?

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   The right to appeal is yours but more and more prosecutors are requiring defendants to give up that right pursuant to plea agreements. There are some appellate issues that may not be waived like jurisdiction or if you did not knowingly, intelligently and voluntarily plead guilty or did not knowingly, intelligently and voluntarily give up your right to appeal. However, you must preserve this issue by moving to withdraw your plea or waiver of appeal in the trial court before sentencing or by...
   1 lawyer agreed with this answer

3. If a person has been found guilty in city

   Answered 29 days ago.
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   When a defendant pleads guilty to a lesser charge and is directed to return to court for sentencing, the judge usually tells the defendant that he will impose the agreed upon sentence if he (1) cooperates with probation between plea and sentencing, (2) makes all of his court appearances and (3) is not arrested for a new offense. However, if at the time of the plea the judge did not specifically tell the defendant that if he failed to show up for sentencing, he might impose a greater sentence...
   1 lawyer agreed with this answer

4. Is a foreign tourist permitted to drive in NYS with the home license which is in English?

   Answered over 1 year ago.
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   3 attorney answers
   I just had this issue in a case. In NY, if you are deemed to be a NY resident, you must turn in your foreign license within 30 days and obtain a NY state license. Here you are just visiting as a tourist so you do not need to turn in your license and may drive on your foreign license if valid and unexpired. In short, the officer was wrong if your foreign license was not expired and appeared valid. Indeed, you should challenge the VTL 509 charge and produce your license, your passport and some...
   1 lawyer agreed with this answer

5. Issue with extradition from ny to pa

   Answered over 1 year ago.
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   2 attorney answers
   The judge should be informed that there has been no response from PA and request that your husband should be released before the ten day period because PA is not responding and this is only a misdemeanor. The judge will probably try to find out what the delay is and if he is not satisfied release your husband. The judge need only give the foreign state a reasonable time to decide whether to come and pick up the defendant if he waives a hearing on identity and the validity of the warrant and...
   1 lawyer agreed with this answer

6. How much do I need to disclose about my HIV status in NY?

   Answered 29 days ago.
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   2 attorney answers
   The New York Court of Appeals has held that It is not an assault under the New York Penal Law to place someone at intentional risk of HIV infection. See People v. Plunkett, 19 N.Y.3d 400, 971 N.E.2d 363 (2012) ("Saliva of defendant who was HIV positive could not be considered a “dangerous instrument” necessary to support conviction for aggravated assault upon a police officer.") However, New York State Public Health Law Section 2307 which provides: "Any person who, knowing himself or...
   1 person marked this answer as helpful

7. Community service not complete

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   4 attorney answers
   This is not a big problem in most courts but how you handle it it depends upon where the court is located. In New York City you need to go into the compliance part before your deadline and explain to the clerk that you need more time to finish your hours. They will grant it to you and if they do not give you an extension, you must have your lawyer contact the judge and request more time explaining that the compliance clerk is not granting more time and you are a full time student. In upstate...
   1 person marked this answer as helpful

8. Can i buy a gun with terroristic threats charges?

   Answered 29 days ago.
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   5 attorney answers
   Have been reading the news? Anyone can get a gun.
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9. Can a person be given an,A.C.D without being coherent?

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   I have not researched this but I would guess that an ACD cannot be approved by the court without the knowing, voluntary and intelligent consent of the client. If I was in court and my client appeared to be incoherent or impaired, I would probably ask for an adjournment requesting the ACD offer be kept open. An exception might be when the attorney has an affidavit from the client granting him authority to enter a plea or disposition on his behalf under CPL 170.10(1)(b). Even though an ACD is a...

10. Can u still enter a motion for rule 29 after the 14 days has passed from getting a guilty verdict??

    Answered 2 days ago.
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    3 attorney answers
    If your husband is dissatisfied with CJA counsel, hire a private attorney to handle the sentencing and appeal. While it is almost certain that failing to file a timely Rule 29 motion is ineffective assistance of counsel, on appeal you will still need to show prejudice. In other words, you have to show that but for the attorney's failure, the result would have been different and the motion for judgment of acquittal would have been granted. Tough standard to overcome. I suppose it can't hurt...