COLUMN: Criminal justice 1010
Back in the day, this article would have been titled Criminal Justice 101, but that was when USU was on the quarter system and no one ever got into trouble with the law. Right? OK, you’ve done it. You got busted for minor in possession of alcohol, or possession of marijuana, or DUI or some other misdemeanor (we’ll save an explanation of criminal justice and felonies for another column). You were either cited to appear in court, or you were arrested and taken to jail where you were booked and released. Now what?
First, you have to appear in court. If you fail to appear, an arrest warrant will be issued, and the next time a cop pulls yo over for a traffic violation, or the next time one of our local officers sees you (yes, Logan is small enough that police officers remember who they arrest — especially if you behaved particularly badly which happens when people are under the influence of mind-altering substances), you will be arrested. Handcuffs will be applied. You will be searched. Your car or truck will be searched. If contraband is found, you will face additional criminal charges. You will be taken to jail. You will not get out without posting bail. So, rule #1: make your court appearances — it just makes life so much less complicated. I didn’t say easier; I said “less complicated.”
You have appeared in court. Now what is going to happen? Before I answer that question, let me digress a bit. We are dealing with a misdemeanor charge, which means if you are charged with a class A misdemeanor, the maximum penalty that can be imposed is up to one year in jail and a $2,500 fine, plus an 85 percent surcharge. if you are charged with a class B misdemeanor, the maximum penalty is six months in jail and a $1,000 fine, plus an 85 percent surcharge. The maximum penalty for a class C misdemeanor is 90 days in jail and $750 fine, plus, you guessed it, an 85 percent surcharge. Infractions carry fines and surcharges, but no jail time.
You’re in court, your name has been called and your are standing before the judge. Now what? First, you have the right to have an attorney represent you. An attorney is usually a good idea. You may even qualify for a court-appointed attorney. if you are charged with either a class A, B or C misdemeanor and request an attorney, the court will have you fill out an affidavit of indigency. You’re a student, so unless you have a fat bank account or own a house, you will probably qualify for appointed counsel. If you are charged with an infraction, you still have the right to have an attorney represent you, but not the right to court-appointed counsel. The state or municipal attorney has the discretion to charge anything as an infraction. If the prosecuting attorney charges you with an infraction, you may be convicted, but you won’t be going to jail, and if you want an attorney, you will have to pay for it. If you want an attorney to represent you on an infraction, you will have to hire your own attorney, and the cost probably outweighs the benefit.
So, you are standing there with the judge staring at you. He or she has asked you what you want to do and your brain has turned into a Slurpee. You know you’re guilty, but you’re not sure what to do. Take a breath and enter a plea of “not guilty.” I know, I know, you did it, you were caught red-handed. You know when it all shakes out that you will have to take responsibility. However, for now, your “not guilty” plea preserves all constitutional rights. It doesn’t mean you didn’t do what you are charged with. It doesn’t mean you’re trying to get out of it. It just means you are maintaining the status quo of your case until you can either talk to an attorney or contact the prosecuting attorney.
If you decide to call the prosecuting attorney, he or she cannot give you legal advice. They represent the state and their interest in the case is counter to your interest. However, that said, calling the prosecutor may not be a bad thing. In a simple misdemeanor case, the prosecutor will likely make an offer to resolve the matter. They will tell you what they are willing to do, (perhaps drop one count, plead to one count, recommend a specific amount of jail, recommend no jail; there are a wide array of possibilities), and making the phone call will give you an idea of where the state is interested in going with your case. If you make any incriminating statements to the state’s attorney, they can be used against you in a trial. Let me say it again: the state’s attorney – ‘the prosecutor’ – is not your attorney and cannot give you legal advice. He can only tell you what he is willing to offer as a plea bargain to settle the case short of trial.
Unless the prosecutor is willing to give you a plea in abeyance, you should think seriously about talking to a defense attorney. If there are constitutional violations in a search, they will see them and prepare and file a motion to suppress the evidence. If there are legal defenses, they can advise you on how best to approach the case. if there is a paucity (lack) of evidence, again, your attorney will be able to advise you on how you might best proceed with your case. If you’re screwed, your attorney can call the prosecutor and beg on your behalf.
You will ultimately have two choices. You can plead guilty and give up your right to a trial, give up your right to confront and cross-examine the state’s witnesses, give up the right to have the state prove beyond a reasonable doubt that you are guilty. You will either plead guilty or take the case to trial. If you go to trial with a jury, I strongly urge you to have an attorney assisting you. You will be expected to know the rules of criminal procedure and the rules of evidence. Without counsel, you will be sorely disadvantaged. If you are charged with an infraction, there is no jury, you won’t face any jail time, and the cost of counsel is probably counter-productive when weighed against the fine.
If you plead guilty, you will be sentenced; that is, the judge will decide what punishment best fits your crime. The judge’s decision will be based on your prior criminal history (or lack thereof), your accomplishments in school, plans, employment history, etc. you may or may not have to do some jail time. You will most certainly have some jail time imposed but suspended. You will have to pay some kind of fine. You will most likely be put on probation with private probation services, which costs $30 a month. Your case is mostly over. You just have to do what the court ordered and you will be successfully terminated from probation.
Should you fail to do what the court orders, things get complicated. You will be back before the judge on an “order to show cause.” You will face a probation violation hearing. If you are found to have violated your probation, the judge will likely impose some of the suspended jail time. Your probation will be revoked and restarted, which means you are back to square one, starting probation all over.
In a nutshell, that’s the process. This article probably raises as many, or more, questions than it answers. Lawyers! What a pain they are. If you have questions and would like to visit, please make an appointment. I’m on campus Tuesdays and Thursdays with appointment times from 5 p.m. to 10 p.m. Contact student services and make an appointment.
Bruce Ward works in the Cache County Attorney’s office as prosecutor. He is available to give legal advice to students. His office is on the third floor of the TSC. Comments can be sent to bruce.ward@cachecounty.org.