Pre-filing Investigations & the California Criminal Process
If you are facing criminal charges in California, it is important to understand the criminal process. If you have been accused of a crime but have not yet been charged, or have other questions more specific to your particular case, it is imperative that you speak to a criminal defense attorney right away.
The Allegation
An allegation is simply a notice to a law enforcement agency that you have committed a criminal act. The allegation can arise from any source, be it a citizen or a police officer; or it could come from a regulatory agency, such as the Securities Exchange Commission or Drug Enforcement Agency.
The Pre-Filing Investigation
A pre-filing investigation generally involves a law enforcement agency analyzing and scrutinizing the facts of your case to determine whether the police agency can recommend that prosecutors file charges against you. During this time, the police may question you or witnesses in the case, or even conduct a search of your property.
During this time, the prosecutor has a significant amount of discretion as to whether or not charges will be filed. This means that if the prosecutor believes that the police have not provided strong enough evidence, he or she can decide against pursuing the case any further or request that the police gather more evidence.
Once the police agency gathers all evidence and sends your case to the District Attorney’s office during the “pre-filing” stage, one of three outcomes will occur:
- The district attorney will file charges against you;
- The district attorney will decide to end the investigation with no charges; or
- The prosecution will request the police agency to conduct further investigation and then return the matter to the district attorney for their review and decision.
For these reasons, it is crucial that you have an experienced attorney on your side, either to convince the prosecutor to not pursue your case, or to consider lesser charges. For example, the attorney might be able to persuade the prosecutor to charge the crime as a misdemeanor rather than a felony. Your attorney may be able to convince the prosecutor that an infraction is more appropriate than a misdemeanor, which would keep you out of jail. If the police have yet to turn over their information to the prosecutor, your attorney can present your side of the story to the police so that the police reports accurately represent the facts in your defense.
During the pre-filing investigation, your attorney will shield you from police questioning, and will keep you informed about your rights while under investigation. Remember, any statement you make to the police, regardless of whether you are in custody or not, can and will be used against you in court. You have the right to refuse to answer questions or make a statement, even if you have yet to be arrested and read your Miranda rights.
The amount of time that a prosecutor has to act on a case depends on the type of crime and the severity of the crime. For most misdemeanor crimes, the prosecution must file charges within one year from the date the offense was allegedly committed. If the crime is a felony, the prosecution generally has three years to file charges from the date the offense was allegedly committed.
The Arrest
If the prosecution decides to file charges, a warrant for your arrest may be issued. An arrest involves taking a person into custody for the purpose of holding the suspect until their case is heard in court. The police must have probable cause to arrest you, which means that the police have a reasonable belief that you committed a particular crime.
If you have been arrested, your attorney may be able to convince the prosecutor to agree to recommend a reduction in your bail, or to have you released on your own recognizance. This means you will be released from custody based on your promise to appear in court as scheduled for your arraignment. If your lawyer can convince the judge to release you without having to post bail, you can potentially save thousands of dollars that you otherwise would have paid to a bail bondsman.
Arraignment and Bail
An arraignment is a formal hearing where the judge advises you of charges against you, and explains the constitutional rights available to the accused. The formal charge may appear in three forms: infraction, misdemeanor or felony. At the arraignment, no evidence will be presented and no witnesses will be called to testify. The court will schedule dates for future proceedings.
Bail Hearing
The bail hearing is another area where an experienced attorney can benefit you. He or she can potentially save you hundreds of dollars by arguing for a reduction in bail. A defendant in custody on criminal charges has the right to reasonable bail. The court may allow the bail hearing to take place during the arraignment, or require the attorney to file a formal motion and notify the prosecutor of your intent to seek a bail reduction. The prosecutor will have the option to contest the reduction.
Entry of Plea
During the arraignment, you may enter a plea of guilty, not guilty, or nolo contendre (no contest). This means that you do not admit guilt, but will stipulate that the prosecution has met the elements of the crime. In addition, you can request a continuance, meaning your hearing will be continued on a later date, for the purposes of retaining an attorney.
Signs That You Are Under Police Investigation
If you have never been involved in a police investigation before, you may not be aware of the common signs. Quickly recognizing when you are under investigation may give you an advantage, as you will have more time to obtain a lawyer and prepare your defense. Some common signs that you are under police investigation include:
- You are contacted or visited by the police.
- Your family or friends are contacted or visited by the police.
- You notice police officers or unmarked cars watching or following you.
- You receive strange requests on social media.
What Happens When a Criminal Complaint Is Filed Against You?
When a prosecutor files a criminal complaint against you, what happens next often depends on whether you are “in custody” or “out of custody.” If police have not arrested you yet, the filing of the complaint may result in an arrest warrant for you. If you are in custody, meaning you are sitting in jail awaiting bail or trial, the prosecutor must bring you before a judge within a day or two for your first court appearance. If you are out of custody, you may have your first appearance within a few weeks. At this hearing, the judge will inform you of the charges in the criminal complaint. The next steps depend on the seriousness of the offense, but no matter how serious the charges are, you should seek an experienced attorney right away or ask the judge to appoint one.
How Long Can Police Hold Evidence Without Charges?
Once you are released from jail either on bail or without charges, you should be able to retrieve your possessions right away. However, for those facing charges, the prosecutor may decide to hold on to your clothing or other belongings as criminal evidence. In these situations, the police won’t release your property until the prosecutor gives them permission. This can take a while until the trial ends.
Additionally, police officers may seize evidence through a search warrant. As long as the evidence is legally seized, the police can usually hold onto it for as long as necessary for the criminal case. If you are not facing charges, however, the police may only hold on to the evidence for as long as the statute of limitations for the suspected crime allows. In California, this is generally 1 year for misdemeanors and 3 years for felonies.
Contact the Criminal Defense Attorneys at Wallin & Klarich Today
If you are the subject of a pre-filing investigation, you should seek the help of an experienced and aggressive attorney immediately. At Wallin & Klarich, our attorneys have over 40 years of experience fighting for the rights of those facing criminal charges. We work tirelessly for our clients from the first day we are hired. Contact us today for a free, no obligation phone consultation.
With offices in Orange County, Los Angeles, San Bernardino, Riverside, Ventura, Victorville, West Covina, San Diego, Torrance and Sherman Oaks., there is a Wallin & Klarich attorney experienced in criminal defense near you, no matter where you work or live.
Call us today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will get through this together.
