310-817-5899

California Defense Attorneys

Law Office of

​David Dastrup

 

DUI Defense

Suspended License

Traffic Ticket

Criminal Defense

Resolving Your Criminal Case

The Criminal Charges Against You

ALL ABOUT A CRIMINAL CASE

&

CRIMINAL DEFENSE IN COURT

1. You do not have to consent to a police request.
In any police encounter, it is important to respect the authority of law enforcement, but it is equally important to
protect your constitutional rights. If a law enforcement officer asks you to provide information or perform an action,
you should always clarify whether the officer is giving a command or making a request.
Police officers are trained to get citizens to relinquish their rights by disguising requests in words that sound like
orders. For example, the officer might say something like, “Sir, I need you to come down to the station so we can speak
about what happened earlier tonight.” However, what he is really saying is, “I would like for you to come down to the
station and speak to me (so I can obtain evidence that will be used against you).”
When dealing with police it is perfectly appropriate to ask politely, “Officer, are you asking me or are you ordering
me?” If you are being asked, not ordered, to provide a statement or perform an action, you should respectfully decline
and ask to leave (or ask the officers to leave), so that you can discuss the situation with your lawyer.


2. But you should always comply with police commands.
It may surprise you to learn that it is illegal in virtually all jurisdictions to disobey police commands, even if the police
are illegally detaining or arresting you. This rule exists to discourage citizens from engaging in physical confrontations
with police officers who carry deadly weapons. If a police officer commands you to perform an action or moves to
places you under arrest, it is important that you fully comply with those orders. Never argue with or confront the
police on the street. As soon as you are able, contact your criminal defense attorney to take appropriate legal action
against the offending officers.


3. “Consent” is often a police officer’s only lawful option to support a search.

Whether the police ask to search your home, your vehicle or your pockets, do not consent. The Fourth Amendment to
the U.S. Constitution prohibits unreasonable searches and seizures and requires that police obtain a warrant before
conducting a search. Over time, numerous exceptions to the warrant rule have been approved. Consent is the ultimate
warrant exception. If the police have no other legal grounds to conduct a search, they will ask for permission.
To put it another way, if the police ask for your permission to search, it means they probably have no other legal basis
to support the search. Say no. Be polite, but firm, and tell the officer, “I do not consent to a search. I have done nothing
wrong, and I would like to help you, but my attorney has advised me never to consent to a search.”


4. There is no value in arguing your case with the arresting officer.
If a police officer is serving an arrest warrant on you, it does not matter if the officer thinks you are innocent or guilty;
the warrant gives him cause to arrest you. If the officer initiates the arrest without a warrant, he obviously thinks you are
guilty or he would not be arresting you. When you try to argue your side of the case to the arresting officer, at best you
are wasting your breath. At worst, you are making incriminating statements that will cause problems for you later. What
you say to the arresting officer can be held against you. The best course of action is to remain silent.


5. Police investigations are designed to get convictions, not find the truth.
Police officers are trained to do one thing when investigating a crime: obtain evidence for use in a criminal prosecution.
If the police ask to interview you or search your property in relation to an ongoing investigation, they are almost certainly
attempting to obtain statements and evidence that can be used to justify your arrest and eventual conviction. Law
enforcement officers will make statements like, “We’re just trying to understand what happened,” but their true goal
is to solicit facts to use against you. Never speak to investigators without your attorney present. Your silence does not
have to provoke suspicion. Simply state, “I haven’t done anything wrong, and I would like to help you, but my attorney
has advised me never to talk to the police without my attorney being present.”


6. The police do not have to advise you of your rights when arresting you.
It is a common misconception (perpetuated by popular movies and television shows) that the police are required
to advise you of your rights at the time of your arrest. The truth, however, is that the police are only required to
advise you of your rights if they plan to interrogate you while you are in custody (called a “custodial interrogation”).
Therefore, if the police approach you on the street and question you, then later place you under arrest, the answers
you gave prior to being arrested may be admissible in court. A related misconception is that if the police do not advise
a suspect of his rights immediately, then all charges will be dropped. Again, this is not true. The remedy for a failure
to advise a suspect of his rights prior to a custodial interrogation is to exclude the suspect’s statements (including any
“confession”) from the trial, not to dismiss the charges.


7. You have to speak up to assert your right to remain silent.
You know that you have the right to remain silent in the face of questioning by law enforcement. You may not know,
however, that you have to affirmatively assert this right, or you risk losing (or “waiving”) it. In other words, you must
speak up and make known your choice to remain silent.
If you are questioned by the police, do the following:
• Tell the officers you do not want to talk to them.
• Ask if you are free to leave. If the answer is “yes,” then leave immediately and call an attorney as soon as possible.
• If you are not free to leave, then reassert your choice to remain silent and request an attorney. Say, “I do not want
to talk or answer questions. I want an attorney.”
• Be quiet! Say nothing else until you have conferred with a criminal defense attorney.
Many people are over-confident and think they can explain everything away when questioned by the police. This
seldom, if ever, works. Instead, be firm and respectful in asserting your right to remain silent. If the officer thinks he
has enough evidence, you are going to be arrested regardless of whether you answer his questions or not. Accordingly,assert yourself at the outset of the police encounter; do not wait to be arrested.


8. If you know that a warrant has been issued for your arrest, you need an attorney.
You gain nothing by waiting for the police to come and take you into custody. When you hire an attorney, the attorney may be able to avoid you having to be taken into custody. If you try to avoid the warrant and wait for the police to come looking for you, they will find you and they also may find evidence of criminal activity not related to the warrant. For example, assume the police have a warrant on John Smith for misdemeanor assault. The police spot John’s car and stop the car to serve the warrant. In connection with the stop, the officers find illegal drugs and an illegal weapon. Now, instead of dealing with a misdemeanor assault charge, John is dealing with weapon and drug charges too.
If a warrant has been issued for your arrest, take the following steps:
• Consult with an attorney: 

  • Your attorney can go to court for you to avoid jail, bail, and you having to deal with the warrant
  • In other situations, your attorney may be able to help arrange issues with police and being taken into custody.
  • Line up the funds you will need for bail.
  • Make sure you have nothing on you (e.g., drugs or drug paraphernalia or a weapon) when going to court or if turning yourself in, since it will only create additional problems.


9. You have no constitutional right to make a phone call from jail.
Criminal defendants often will complain that the police did not honor their “right” to make a phone call. There is no
such thing as a constitutional right to make a call immediately after arrest. State laws or administrative rules might
require the police, a jail or a lock-up facility to allow an arrestee to make a call, but the Constitution does not.


10. If you are allowed to make a call, keep it short and stick to the immediate facts.
This is critical because virtually all police stations record these phone calls, and the prosecution surely will obtain a
copy of the recording. During this initial phone call, do not discuss the circumstances leading up to and surrounding
your arrest. Do not argue your innocence or try to explain how you ended up in jail. Simply state the charges against
you (if you know) and where you are being held. Ask for help in finding a criminal defense attorney. Give your friend
or loved one enough information to find you, but nothing more.


​11. There (still) is no value in arguing your case to the police.
As noted above, during a police encounter, there is no value in arguing your case to the arresting officer. The same
holds true post-arrest. After you are arrested, the police may spend some time questioning you. The point of this
interrogation is to gather information for the prosecutor to use against you, and maybe even get you to confess. The
interrogating officer might offer to drop certain charges or promise to go easy on you or get you a better deal if you
just tell him what he wants to hear. Don’t believe it. In general, if the police had sufficient evidence against you to go
forward with the case and obtain a conviction, they wouldn’t be offering you a deal.
Moreover, the police officer sitting across from you in the interrogation room has no real power to cut you a deal
or drop the charges. Although the police can make recommendations, the prosecutor determines (a) whether the
government will offer you a plea bargain and (b) what the terms of that bargain will be. Therefore, when a police
detective promises you will get a particular deal, you cannot rely on that promise. Accordingly, do not make a deal or
sign a confession before you talk with your attorney. Tell the interrogating officer that you are exercising your right to
remain silent and then remain silent.

12. The more you talk about your case, the more you put the outcome at risk.

Perhaps the most common mistake made by criminal defendants is talking about their case. The key to avoiding this
mistake is simple in theory, but in reality is often easier said than done: Do not discuss your case with anyone other
than your criminal defense attorney.
If you are being held in custody, cellmates may be police plants or willing to turn state’s evidence to get a better deal for
themselves. Conversations on jail telephones are monitored and recorded. If you say something over the jail telephone,
assume the district attorney will hear about it. Plus, jail staff typically read incoming and outgoing inmate mail.
If you are out on bail, your family members and friends will want to know what happened, and you surely will be
tempted to explain why you are not guilty. Resist that temptation. Even seemingly harmless statements you make to
trusted friends and family members can be used against you in ways you did not expect. Simply say, “My attorney says
I cannot talk about the specifics of the case with anyone.”
Finally, “talking” about your case includes posting information about your case on social media.
Regardless of how unfairly you have been treated, or how well your case is going, keep it to yourself. When you post
on social media, you may inform the prosecution of something about your case they did not previously know, or
inadvertently reveal a violation of your bail or other release conditions. Again, your attorney is the only person with
whom you should discuss your case.

13. The State decides whether to prosecute a case, not the alleged victim.
Many people mistakenly believe that they cannot be prosecuted for criminal acts unless the alleged victim chooses to
“press charges.” This is completely untrue. The prosecuting authority, usually the State’s or District Attorney’s Office,
makes the decision as to whether or not suspected criminal acts will be prosecuted. Similarly, alleged victims cannot
“drop” the charges. Often, the prosecutor will listen to the wishes of victims and their families, but the decision to
abandon or move forward with a case lies with the government. In addition, many prosecution offices have strict “no
drop” policies with respect to certain crimes, like domestic violence, and will never dismiss a case based on the wishes
of the alleged victim.


14. Ignorance of the law is not a defense.
“I didn’t know [certain conduct] was illegal,” is not a defense to the charges against you. Neither the police, nor the
prosecutor, nor the judge cares what you know or don’t know about the law. It is presumed that all people within the
jurisdiction are aware of the law. Claiming that you were ignorant of a specific provision, which you are now charged
with violating, will not allow you to escape criminal liability.


15. Innocence is not a basis to for a motion to dismiss.
Criminal defendants will often request that their case be dismissed because they are innocent of the charges against
them. However, a pre-trial motion to dismiss – that is, a formal request to the court to dismiss the charges – must be
based on one of a very few, narrowly defined, technical reasons for dismissal (e.g., the time allowed to file charges
has expired or the court has no jurisdiction over the case). A claim of innocence is not a valid reason for a dismissal
motion. If you did not do what you are accused of doing, then you must plead “not guilty” to the charges and request
a trial. It will then be up to the trier of fact, either a judge or jury, to review all of the evidence determine whether you
are guilty or not guilty.


16. Your good character generally is irrelevant to your defense at trial.
While character witnesses may be extremely helpful at a bail hearing or a sentencing hearing, they are almost never
allowed in criminal trials. Subject to a few limited exceptions, character evidence is generally inadmissible. The issue
at a criminal trial is limited to whether you did the specific thing you are accused of doing. Evidence that you are a
“good person,” or that your accuser is a “bad person,” generally is irrelevant.

19 THINGS YOUR CRIMINAL DEFENSE ATTORNEY WISHES YOU KNEW


There are many myths and misconceptions about the criminal justice system. The more
you about how the system actually works, the better you will be able to assert your
rights and protect your interests. This list contains information and advice which, we
hope, you can use to your advantage to help you avoid the common pitfalls and unpleasant
surprises that can plague an individual both before and after an arrest - but do not say or do anything without further advice from an attorney for your specific situation.


1. You do not have to consent to a police request.
2. But you should always comply with police commands.
3. “Consent” is often a police officer’s only lawful option to support a search.
4. There is no value in arguing your case with the arresting officer.
5. Police investigations are designed to get convictions, not find the truth.
6. The police do not have to advise you of your rights when arresting you.
7. You have to speak up to assert your right to remain silent.
8. If you know that a warrant has been issued for your arrest, you need an attorney.
9. You have no constitutional right to make a phone call from jail.
10. If you are allowed to make a call, keep it short and stick to the immediate facts.
11. Once you are arrested, there (still) is no value in arguing your case to the police.
12. The more you talk about your case, the more you put the outcome at risk.
13. The State decides whether to prosecute a case, not the alleged victim.
14. Ignorance of the law is not a defense.
15. Innocence is not a basis to for a motion to dismiss.
16. Your good character generally is irrelevant to your defense at trial.
17. You are not allowed to speak to the judge about the facts of your case.
18. A plea agreement is not a “get out of jail free” card.
19. A criminal trial is not a quest for the truth.


These points are addressed below in detail. However, every case is different, so you should not do anything on your own without the advice of an attorney. Read this to learn, and then you will understand better what your attorney will be explaining to you. In addition to information on this page below, here are the other subjects that we go into detail about. Click on the link to learn more:

Don't Talk to Police & Don't Give Consent to Police

17. You are not allowed to speak to the judge about the facts of your case.
You may want to write a letter to the judge, or speak with the judge about the facts of your case, but this not allowed.
It is strictly forbidden to communicate with the judge about a pending case off the record, outside of court. The judge
will disregard any letters sent to him or statements made by you professing your innocence. Blurting out facts about
yourself or the charges against you in court could actually damage your case. Let your criminal defense lawyer be
your voice in communicating with the judge.


18. A plea agreement is not a “get out of jail free” card.
Most criminal cases are resolved through plea deals, and it is likely that, if arrested, you will be offered a plea deal.
Moreover, chances are that your best interests will be served by taking the deal. Be sure, though, that you understand
what you are agreeing to and what will be required of you. A plea deal is not a get out of jail free card. Often, plea
deals come with stiff financial requirements. In addition, you may be subjected to a curfew and travel restriction. Drug
testing can also be part of a plea deal. If you think you will have trouble complying with the terms of the agreement,
you may be better off rejecting a deal and going to trial. Probation violations are easier to prosecute than the crime
that was originally charged and the punishment can be harsh.


19. A criminal trial is not a quest for the truth.
Contrary to what you may believe, the jurors in a criminal trial are not obligated to collectively piece the evidence
together until they arrive at “the truth.” It is not their job to “solve” the case. Rather, the jurors’ only job is to determine
whether the government, as represented by its prosecuting attorney, has met its burden of proving your guilt beyond
a reasonable doubt. To put it another way: You do not have to prove your innocence; the prosecution must prove
your guilt beyond a reasonable doubt. Practically speaking, “beyond a reasonable doubt” means that, after hearing
all the evidence, the jurors must be truly and steadfastly convinced that you are guilty of the crime charged. This is a
heavy burden..