Options when charged with a criminal case
Assuming probable cause exists for the arrest –
See prior article on burdens of proof, including probable cause here: https://www.jlcarpenterlaw.com/burdens-of-proof/
There are several options for folks who are charged with a criminal case:
Option #1
Option #1 – Plea bargain:
If it appears the Prosecutor can prove each and every element of the alleged crime beyond a reasonable doubt, then the client may want to engage in a plea bargain or plea negotiation.
What does it mean to prove each and every element?
For instance, if someone is charged with a Driving While Intoxicated Charge (DWI),
The State must prove the following:
It was THIS accused person;
In THIS particular county;
Operating a Motor Vehicle (there are legal definitions for “operating” and for “motor vehicle”;
In a PUBLIC place;
Intoxicated (not having the normal use of the mental and physical faculties or having a blood alcohol concentration higher than .08)
So what if the person accused was intoxicated, but the accused was on private property, such as a residential driveway?
Then the State cannot prove EACH and EVERY element of their case and the case should be dismissed or go to trial.
However, if the State can prove their case then some plea negotiations may include the following:
Option #2
Option #2 – Deferred Adjudication Probation:
When a client enters a deferred adjudicated probation, the judge will hear the client plead guilty, but the judge will NOT find the client guilty. The judge will DEFER a finding of guilt (withholding conviction) and upon successful completion of the probation, the client will be discharged from the offense without a final conviction.
This is especially helpful in a felony case to prevent a final felony conviction on the client’s record. The alternative punishments to a felony offense are either a straight probation (see below) or being sentenced to prison time.
Either of these options ends with a final felony conviction – making the client a convicted felon.
The deferred adjudication path is one that leaves less bruising on the client’s record and more opportunity to move forward in life. There may be way to get the arrest and probation off of the client’s public record later down the road, but the Government will always know about it. Private entities would not. This is accomplished through a Petition for Non-Disclosure.
Certain offenses are not eligible for non-disclosure. In felony cases that are eligible, the client must wait 5 years from the date released from probation before seeking this relief. In misdemeanor cases, the client may be eligible in some cases immediately upon termination of the probation. In other misdemeanor cases, the client may have to wait 2 years upon being released from probation. The client may not have any arrests during this waiting period.
Option #3
Option #3 – Straight Probation:
A straight probation ends with a final conviction. Let’s say for instance someone pleads guilty to a DWI charge. DWI cases are not eligible for deferred probation. So if someone takes DWI probation, it is a final conviction. In misdemeanor court, there are Class B offenses that are punishable up to a $2000 fine and/or 180 days in jail, and there are Class A offenses that are punishable up to a $4000 fine and/or 365 days in jail.
A straight probation is taking the jail time and probating the jail time over a period of months or years. An example would be 180 days in jail probated for 12 months. If the client does everything required on probation, then the client will not go to jail. However, if the client fails to uphold the terms of probation then the judge may revoke the probation and sentence the client up to 180 days in jail. Either way, the conviction will always remain on the client’s criminal record.
Option #4
Option #4 – Pretrial Intervention or Pretrial Diversion:
Since DWI cases are not eligible for deferred adjudicated probation, then many Prosecutors’ offices have started offering an informal probation called Pretrial Intervention or Pretrial Diversion.
The concept of Pretrial Intervention is not new. It has been a tool used for many years. It is an opportunity to allow someone with no criminal record to perform a probation agreed to by both parties and binding by a contract.
In this scenario, the client never enters a plea before a judge. If the client successfully completes the terms of the contract (usually over 12 months) then the State will dismiss the case and the client will be eligible to have the arrest expunged from his or her record.
However, if the client fails to uphold his or her end of the contract, then the State will withdraw the contract and the case will continue to move forward as it was before the agreement.
Recently, Pretrial Intervention has been offered to DWI 1st offenders as a way to clear someone’s criminal history if the person is “low risk” and simply made a bad choice rather than branding them with a DWI conviction.
From the Harris County District Attorney’s website:
DWI Pretrial Intervention
This program provides probation supervision for a one-year term for first-time DWI offenders. Participants are required to meet with a probation officer once a month, complete 16 hours of community service, complete a nine hour drug and alcohol course, as well as install an alcohol monitoring device in their vehicles as conditions of their contract. Other stipulations may be required if their assessment recommends.
Option #5
Option #5 – Trial:
Of course, if the client is not guilty of the criminal allegation, sometimes the last resort is a jury trial. A lawyer cannot plead a client guilty of something he or she did not do just because the client is fearful of going to trial. Therefore, a client cannot take a deferred adjudicated probation for something he or she did not do, as that would be entering a plea of “guilty.”
Cases that go to trial most often are contested DWIs, domestic violence allegations and sex allegations.
With domestic violence or assault cases there are three (3) main defenses:
It wasn’t me;
It was me but I acted in self defense; or
It was me, but I acted in defense of another.
Remember at trial, the State must prove each and every element of the offense beyond a reasonable doubt.
Option #6
Option #6 – Dismissal:
There is always the possibility the Prosecutor will dismiss the case.
The State is the one with the power to bring the case, and they are the one with the power to dismiss the case.
A case can be dismissed at any stage – from day 1 of being charged, to the first appearance in court, to the day of trial, or even in the middle of trial.
The State may reserve the right to re-file the case after dismissal if new evidence arises in the State’s favor within the Statute of Limitations for that case.
Typically, the Statute of Limitations (SOL) is two (2) years for misdemeanors, and the SOL varies for felonies. Some felonies do not have a SOL.
Presenting to a Grand Jury
Last but not least, there is a tool we sometimes use to dispose of felony cases through the grand jury. This is different than a jury trial. We will discuss that topic in the next article.
In the mean time, if you know someone who went to jail, Call J.L.! (713) 201-6767