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Defense Overview

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Criminal Defense Overview – Your Constitutional Rights

Always remember you have constitutional rights that need protection. If you have been arrested for a crime or contacted by the police, please keep these seven points in mind:

    • You have the right to have your attorney present with you at every stage of the proceedings.
    • You have the right to a public trial by an impartial jury.
    • You have the right to remain silent before and during trial. No one can force you to testify against yourself.
    • You have the right at trial to hear and question all witnesses who testify against you.
    • You have the right at trial to have witnesses testify on your behalf.
    • You have the right to appeal a determination of guilt after a trial has concluded.
    • You are presumed innocent until a criminal charge is proven “beyond a reasonable doubt” or you enter a plea of guilty.



Felony and misdemeanor arrests must be based on probable cause. There is no simple test to define probable cause, but the police must rely on what they believe to be good information. Arrests can be made with or without a warrant, depending upon the circumstances. If you have been arrested . . .



Setting Bail

Following an arrest, bail is usually set according to a published bail schedule or following the magistrate warning by a local justice of the peace. Bail is made with cash or a bond. A bond usually requires about a 10% fee to a bondsman and sometimes requires collateral. The bondsman’s fee is non-refundable. A cash bail is returned, less a small administrative fee, when the case is concluded. Bail reductions are often obtained by negotiations with the prosecutor or by filing bond reduction motions with the court.


Retaining an Attorney

You may retain an attorney at any time, regardless of the procedural status of your case. We advise you hire a lawyer immediately after learning you are the target of an investigation or after your arrest. Furthermore, there may be important time deadlines associated with the defense of your case and I’m prepared to help you meet them.


other than to identify yourself.


Bringing Charges Against You

Only the prosecuting attorney has the authority to file criminal charges. The police do not file charges – nor do private citizens have the power to “press” or “drop” charges. Although victims cannot drop charges, they often influence the prosecutor’s decision to charge or not. Direct contact by the accused with the victim is not advisable – you should speak with me first.


The First Court Appearance

The first court appearance is usually the arraignment or pre-trial hearing. Often, uncontested matters are taken up before the judge and informal discussions with the prosecutors occur. Other pre-trial motions may be filed like motions to suppress evidence, motions for discovery, or motions to suppress statements. Sometimes the prosecutor and I agree to the disposition of these motions. Other times a separate court date is scheduled for a contested hearing. Contact the Firm before your first appearance – sometimes this appearance can be waived if in your best interests.


Plea Bargain Negotiations

Plea bargaining is a process where I negotiate with the prosecutor to obtain the best possible plea for you. Many times a plea bargain is in your best interests – but sometimes it is not. You NEVER have to accept an offered plea bargain. The bargaining process may include charging you with a lesser charge or agreeing to a lesser punishment for the same charge. Plea bargaining is always a compromise for both sides. However, bargaining with the prosecutor can often reduce dangerous risk to you since the outcome of the plea bargain is known ahead of time. Many times non-conviction probation (deferred adjudication) can be negotiated with the prosecutor as a satisfactory plea bargain.



Your attorney should be prepared to take your case to trial. A trial can be before a jury, or a judge, as the fact finder. Often a trial is in your best interests, especially if you have been wrongly accused or a satisfactory plea bargain has not been reached. There are complex rules of criminal procedure and evidence that must be followed to successfully try a criminal case. At trial, evidence is presented, objections are made, and arguments presented on each side. The trial is typically concluded with a verdict of either not guilty or guilty. Sometimes a verdict is not reached (mistrial) and the case must be re-tried. I am a criminal attorney with vast experience trying cases who can help you navigate these dangerous waters.




If a person is convicted of a felony offense the punishment varies depending upon the seriousness of the felony. All felonies include a possible sentence of state prison time, plus a substantial fine. If a person has not been convicted of a felony before, a suspended sentence (probation) is often a satisfactory result.


If a person is convicted of a misdemeanor offense the punishment range also varies depending upon the seriousness of the charge. Class A and B misdemeanors can be punished by county jail time, plus substantial fines. Class C misdemeanors carry only a fine as the possible punishment. Probation and deferred adjudication are common sentences in misdemeanor cases depending upon the circumstances of the case.



If convicted, a person may appeal. There are strict time limits for the filing of a notice of appeal, which is the beginning of the appeal process. It is the defendant’s responsibility, or their lawyer’s, to make certain the notice of appeal is filed in a timely manner.


Expunction/Non-Disclosure Orders

Under certain circumstances your arrest records can be removed from law enforcement data bases by the use of expunction procedures. Additionally, under certain circumstances the law provides for the sealing of a person’s successfully completed deferred adjudication with the use of the non-disclosure procedures. I can help you with these very valuable legal tools. They are indispensable when applying for employment, loans, or professional licenses.



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Stephen Gustitis