CRIMINAL DEFENSE PROCESS
The criminal process can be complex and confusing. It's important to understand a person’s legal rights. The individual charged should contact a criminal defense attorney in their area as soon as possible if when are charged or suspected of a crime. A criminal defense attorney will explain their legal options and help them make the best decisions for their defense.
Before an arrest for a crime, an individual may be the target of an investigation by law enforcement officers, and may even be under surveillance. At such an early point in the criminal defense process, it's wise to seek the counsel of an experienced criminal attorney. Law enforcement officers (whether local city police, county sheriff’s department, federal agents, etc.) sometimes overstep their authority.
In other cases, officers make an arrest without an investigation. An alleged crime may have been observed by law enforcement, or the arrest may be done based on other information. A person's constitutional rights must be protected throughout the criminal defense process, and at the time of arrest, a person has the right to remain silent, and the right to contact an attorney.
A person may be stopped for questioning by the police. A stop isn't considered an arrest if they are briefly detained and not moved to a different location. To maintain legal rights when stopped by the police:
Remain calm and polite. Keep hands in view and don't try to run away.
If stopped when driving, show driver's license, vehicle registration and proof of insurance if the officer asks for them.
You have the right to remain silent. It's usually best to give your name, but tell the officer you're exercising your right to remain silent if you don't want to answer questions.
Ask the officer why stopped and if under arrest.
SEARCH vs. SEARCH WARRANT
The police might ask if they can search a person or that person’s car or home. Consent can be refused for these searches. Officers can frisk a person or pat down their clothing if they have a reason to suspect a weapon. In most other cases, the police must get a warrant to go ahead with a search. However, search warrants are not required for the following:
Searches incident to arrest: Police officers are permitted to search body and clothing for weapons or other contraband when making a valid arrest.
Automobile searches: If arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments or trunks, for example), probable cause is necessary.
Exigent circumstances: Searches may be conducted in emergency situations requiring immediate action, such as to avoid the destruction of evidence.
Plain view: Police don't need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
Consent: If consent is given to a search of body, vehicle or home, the police aren't required to have a warrant. However, it is NOT required that a person give consent when asked for it by police.
A search warrant authorizes police to conduct a search of a specific place, such as a home or business. In order for a judge to issue a warrant, there must be probable cause. This requires evidence showing it's likely that items connected to criminal activity will be found in the place to be searched. The general rule is that warrants are required for searches.
The police must have probable cause in order to make an arrest. This means the police officer must have a reasonable belief that a crime was committed. If an officer sees a crime committed or has another good reason to think the law was broken, an arrest warrant isn't needed.
REMAIN SILENT & REQEST ATTORNEY
You have the right to leave if you aren't under arrest. If you are placed under arrest, you have the right to an attorney. Tell the police you wish to remain silent until you speak with your attorney.
After placed under arrest, a person is protected by constitutional rights. Two important rights to be aware of are the right to remain silent and the right to have an attorney. After an arrest, a person isn’t required to say anything to the police or investigators until an attorney is present. A person must be given the chance to contact an attorney.
After arrested, the police will bring the person to the police station for the booking process. They be fingerprinted and asked a series of questions, such as their name and birth date. They’ll also be searched and photographed. Their personal property such as jewelry will be catalogued and stored.
A person has the right to know exactly what charges are being brought against him or her.
A person who has been arrested will probably have the opportunity to make bail by posting money or going through a bonding company (an individual whose business is to pledge his or her own security to guarantee the bail bond to the court) pending a future appearance in court. Please note that law enforcement has seventy-two (72) hours for each charge to set a bond amount.
If the court sets a “cash bond” this entire amount must be paid to the court via cash. This bond amount will go towards any court ordered monies in the case and if any balance is remaining, it will be refunded upon the conclusion of the case. This is usually done in Probation Revocation and Failure to Appear charges. However, in these charges the court may deny setting a bond and hold you in custody until a court hearing.
If a person is financially unable to retain an attorney for representation they may request the Court to appoint an attorney to represent them. The court will determine if they financially qualify for a court appointed attorney and which attorney they will appoint to represent them. However, the person may be required to reimburse the State for the appointed attorney’s fees for representation, which are billed at $70.00 per hour.
DRIVER LICENSE SUSPENSION
If the Department of Public Safety issues a suspension of the Defendant’s driver’s license, an additional suit can be filed to have the suspension stopped. The purpose of filing a driver’s license civil suit is to STOP the suspension of the driver’s license privileges pending the outcome of the criminal DUI charge. The civil suit must be filed within ninety (90) days from the DUI arrest. THIS IS OPTIONAL TO THE DEFENDANT.
MISDEMEANORS & VIOLATIONS
Misdemeanor and traffic charges are generally resolved in the lower (Municipal or District) Court unless the Defendant CHOOSES to appeal the case to the higher (Circuit) Court.
In traffic violations and misdemeanor charges, a person will make an initial court appearance called an arraignment. During the arraignment, they will be advised of the charge(s) against them and be asked to enter a plea to those charges. Possible pleas are:
Not guilty plea: A not guilty plea asserts that the person did not commit the crime charged against them. After the plea, a trial date will be set.
Guilty plea: If they plead guilty, they're admitting to the facts of the crime and the fact that they were the one who committed that crime. If they plead "guilty", there will not be a trial. They will immediately receive a sentence from the court.
It is NOT recommended to enter a guilty plea at an arraignment. Instead, it is advised that that person at least seek legal advice, if not legal defense, and understand their rights prior to entering any plea with the court.
Upon entering a not guilty plea with the court, the case will be set on a trial docket. This allows enough time to consult with and obtain counsel for representation. At the trial setting, the case may be resolved through a dismissal, plea negotiations, or a trial.
However, if not satisfied with the outcome OR if offered a better outcome in the higher (Circuit) Court, the person has the option of stipulating (agreeing) to a guilty plea and receiving a sentence in order for an appeal bond to be set to allow you to have the case moved to the higher (Circuit) Court. This will allow the case to begin all over but in the higher (Circuit) Court.
However, if the person fails to appear for any court required setting(s), the case will be returned to the lower, (Municipal or District) Court for a warrant to be issued for their arrest to enforce the sentence given at appeal.
Consequences for misdemeanors and felony convictions are different. A defendant must understand which crime they have been charged with in order to understand what will happen if convicted.
Generally, a misdemeanor crime is punishable by up to one year in county jail. Misdemeanor trials are held in the state's lower court, referred to as either the Municipal or District Court. Examples of misdemeanor crimes include Driving Under the Influence, Possession of Marijuana Second (2nd) Degree, Theft of Property Third (3rd) Degree, among others.
A felony crime is punishable by one year or more in state prison or a penitentiary. Felonies begin in the state's lower, District, Court system but then proceed to the Grand Jury AND higher, Circuit, Court. Examples of felony crimes include Murder, Rape, Robbery, Possession of Marijuana First (1st) Degree, Possession of Controlled Substance, Theft of Property First (1st) Degree, among others.
FELONY COURT PROCESS
All felony charges go through a three (3) court processes. The first (1st) court process is District Court. This is the evidentiary process to allow the Defendant the ability to better prepare their defense. The second (2nd) court process is the Grand Jury process. Upon the conclusion of District Court, the case is forwarded to the Grand Jury for an indictment to be issued. The third (3rd) court process is the Circuit Court process. Upon an indictment being issued, the case is then moved to Circuit Court wherein a circuit court judge and case number will be assigned. Circuit Court is the court process wherein the case will be resolved.
In felony cases, the court will set a Felony Exam court date as soon as possible. The purpose of this court setting is to allow the person the opportunity to request an attorney to be appointed to represent them if they are financially unable to retain counsel on their own.
In felony cases, a person has thirty (30) days from the date of their arrest for your attorney to file the necessary pleadings in court to receive a Preliminary Hearing (evidence hearing) court date. The purpose of a Preliminary Hearing is to obtain all evidence in the case, including but not limited to arrest report, affidavit in support thereof, video(s), picture(s), witness report(s), police officer testimony, etc. In obtaining this information, they are better able to discuss possible plea agreements with the prosecutor and/or prepare the defense for the circuit court proceedings.
At the preliminary hearing the judge determines whether sufficient evidence exists to send the case to the upper court for trial. The judge reviews whether there is probable cause to believe a crime was committed and whether there is probable cause to believe the person in front of the court is the one who committed the crime. Rarely does a judge overturn the prosecution and dismiss the case. In fact, the prosecution or judge can add additional charges to the case at this hearing. The length of a preliminary hearing varies by case. It may last three hours. It may last three questions. Upon the conclusion of the Preliminary hearing, defense counsel generally request a copy of the file materials from the prosecuting attorney and, upon receipt of same, may provide a copy to the Defendant for their review and records.
Upon conclusion of the District Court proceedings/Preliminary Hearing, the case is forwarded to the Grand Jury for an indictment to be issued. Almost always, the Grand Jury will find that there is enough evidence to proceed, with the evidence possibly being either a witness, which could be the police officer that performed the arrest or a third party that alleges they were witness to the crime, or other material evidence, which could be anything that they took from possession. Please note that this process could take anywhere from one (1) month to three (3) years, or longer, depending on the court’s caseload.
A plea agreement is a deal in which the prosecutor offers an incentive, like a shorter sentence or reduced charges, if the defendant agrees to plead guilty. A criminal defense attorney representing the accused person may be able to negotiate to get the charges reduced or dismissed. If the charges are not dismissed, a defense attorney will strive to minimize the negative consequences for the defendant.
If a plea agreement is not reached in the case, it moves toward the trial stage. Criminal defendants have several legal rights that apply during a trial. These include:
Speedy trial: A trial must be held within a reasonable time period after charged with a crime.
Trial by a jury: Entitled to a trial by a jury if charged with a crime punishable by six or more months of jail time. Allowed to give up this right by requesting a bench trial (a trial in front of a judge only).
Effective assistance of counsel: The right to a lawyer who must do a reasonably good job of defense.
Right to remain silent: The Defendant is not required to testify in court.
Right to confront witnesses: Must be able to cross-examine any witnesses who testify against the Defendant.
A judge will determine your punishment or sentence if found guilty in a trial. If a proposed plea agreement that was offered was not accepted, chances are, the judge will sentence more severely than the plea agreement proposed. In deciding a sentence, the judge may consider:
Laws or guidelines requiring specific penalties for crimes.
Presentence reports prepared by probation officers or court personnel.
Evidence provided to show mitigating circumstances or reasons to apply a less severe penalty.
Information provided by the victims of the crime.
The severity of the crime and the circumstances of the crime.
Past criminal record.
The severity of the sentence is largely determined by the seriousness of the crime. Sentencing may include the following PLUS payment of court costs and all other court ordered monies:
Paying a fine.
Jail or prison time.
Restitution: This includes paying for the damage or loss caused by the crime.
Probation: This means staying out of jail so as you complying with the terms of probation.
Alternative sentences: These include things like doing community service or completing a drug rehabilitation program, or possibly house arrest or the Community Corrections Program.
Death: This is the ultimate punishment applied to the most serious crimes. Alabama allows the death penalty for murder.
The Alabama Board of Pardons and Paroles Pardon Unit is responsible for processing investigations for Voter Rights Restoration, Pardons, and Remissions of Fines and Forfeitures.
To make application for one of the above, an applicant may apply by one of the following methods:
Contacting the local State Probation and Parole Office in the area the applicant lives.
Contacting the Board of Pardons and Paroles by telephone at (334) 242-8700, choosing option 4 on the menu and then option 5 to speak with Pardon Unit Staff.
Contacting the Board of Pardons and Paroles in writing at
P. O. Box 302405, Montgomery, Alabama 36130-2405
The request should include all of the following information:
Name under which convicted
Sex and race
Date of birth
Social Security Number
AIS# (Alabama Prison #), if you have one
Current physical address including county
Current mailing address if different from physical address
Indicate if the conviction was a State or Federal Conviction
Home telephone number, including area code
Work or alternate telephone number, including area code
Complete list of convictions, county of convictions and year of convictions
The applicant should indicate if they are only interested in voting rights or both voting rights and a pardon. If the applicant is interested in a pardon, they should indicate if they need a misdemeanor pardoned for purposes of obtaining a license (such as bonding or nursing, etc). If this is not indicated, it will be assumed that the applicant is only interested in having felony convictions pardoned.
Criminal charges can take a lengthy court process before being resolved. The sentencing guidelines have recently changed for some charges to follow federal sentencing guidelines. This is more commonly known as the Presumptive Sentencing Guidelines. There is other information that an attorney will need to discuss with their clients regarding the criminal defense process which has not been included in this section, such as applying for Youthful Offender Status and Probation Revocation proceedings. Legal seminars concentrating solely on criminal defense law are offered throughout the year to keep attorneys advised of all updates in the criminal defense field.
No representation is made that the quality of legal services is greater than that provided by other attorneys.