Criminal Defense: We Can Help

You’ve been charged with an infraction, now you’re obviously worried about what’s going to happen. There are a number of key elements to successful criminal defense. Foremost, and often determinative, is thorough review and further discovery of facts. Frequently criminal defense attorneys don't make a scene visit, interview all possible witnesses, or overlook a critical element that could impede or ultimately defeat the prosecution. Full factual review often leads to evidence suppression or, ideally, a dismissal. If not fruitful, a deferred disposition can be negotiated with the prosecutor. Behave well for a certain period of time, thereafter the case is dismissed. And, if eventually trial is inevitable, Maser Law guarantees a vigorous defense. In sum, seeing that you're one of just a few clients, we have the time to take these extra steps – ensuring an optimal outcome.

Basic Concepts & Tips

Right to Remain Silent
Miranda Warning
Evidence Supression
Misdemeanor vs. Felony
Omnibus Hearing
Beyond A Resonable Doubt
Plea Bargain
Deferred Disposition
Suspended Sentence
Fines & Fees
Public Defender
Municipal Court
Justice Court
District Court

Right to Remain Silent: exercise your right to not incriminate yourself…you’d be amazed at how few folks do. Be pleasant and cooperative, yet, refrain from providing details that support a case against you. Classic police statements like you’re only helping yourself by telling us what happened couldn’t be farther from the truth. A prosecutor, especially in a more serious crime, needs facts to merit bringing a case against you….and to be successful at prosecuting. Don’t make their job easier. Also be aware law enforcement typically has a dash cam in their cruiser as well as a live mic on their lapel when they talk to you. And, these recordings will be used to build a case against you.

Miranda Warning: as you’ve likely seen on TV law enforcement are required to provide a statement of your right to remain silent, that anything you say may be used against you, and your right to an attorney. The point at which Miranda is necessitated is not the moment you’re stopped. Instead, in Montana it’s when you no longer feel free to go i.e., your stop has now become custodial, and the questions the officer may ask have a likelihood of an incriminating response. Subsequent admissions or incriminating evidence gathered after this point, without a Miranda warning, can potentially be suppressed.

Evidence Supression: law enforcement has two basic requirements to ensure the constitutional validity of evidence they obtain. If they fail to meet these threshholds, your attorney can move to supress the evidence that was improperly procured. First evidence can't be secured via an unlawful search and seizure. Second any incriminating statements provided from you once the stop becomes more than a cursory investigation, must be voluntarily given. Relative to search and seizure, generally police need a warrant to enter or open private spaces...such as entering your house, or digging through your purse. Yet, there a numerous warrent exceptions too lengthy to list here. But, common ones are safety related for the officer's protection e.g., a pat down to make sure you don't have weapons on you, or search the immediate grab area you could get to when stopped in your vehicle. Meanwhile, after an officer becomes more suspicious and they begin to ask further questions; thus, you don't feel free to go anymore, they are required to provide a Miranda Warning (see above), ensuring that you understand your asnwers to subsequent questions might incriminate you. A failure to provide Miranda after which you incriminate yourself, could enable your attorney to have your statement suppressed. In general, though, exercise your right to remain silent (see above).

Bond: bonds for most matters are set at manageable amounts a typical defendant can afford e.g., a few hundred dollars. Once bonds become larger you may need the assistance of a bondsman. Bondsmen charge an up-front non-refundable fee of 10% of the face value of the bond. Thereafter, you are technically in the custody of the bondsman. If you fail to appear for a court hearing, etc., a notice of forfeiture is sent to the bondsman now requiring the full face value of the bond to be tendered to the court. Simultaneously a warrant will be issued for your arrest for failure to appear. Bondsmen typically wait a month after the notice of forfeiture hoping you’ll appear at court on your own initiative or alternatively be apprehended by law enforcement. This saves the bondsman the hassle of having to track you down. Once they come after you, though, bondsmen have the power and right to seize you when you’ve skipped bond, and, unlike law enforcement are not subject to constitutional restrictions per search and seizure mandates.

Misdemeanor vs. Felony: a misdemeanor is a less serious charge. Misdemeanors as a rule of thumb typically have maximum jail sentences of 6 months and maximum fines of $500. Felonies, on the other hand, have minimum jail sentence of a year and maximum fines potentially in the tens of thousands of dollars.

Arraignment: within 24 hours of a serious infraction that lands you in jail, you are entitled to an appearance before a judge to make initial plea (not guilty…of course) and hopefully be released either on your own recognizance i.e., you promise you’ll thereafter show up for matters, or released on bond. At arraignment, inquiry as to whether you need a public defender is made. General hint: don’t get arrested at the beginning of the weekend. Arraignments for jail detainees don’t occur till Monday morning. Meanwhile, if you’re merely written a citation with no arrest, your arraignment is usually two to three days later as noted on the ticket. You have to appear in court on your own, either entering not guilty or guilty on the record.

Omnibus Hearing: After arraignment, the court sets a hearing typically two months out called an omnibus. At this time both the prosecution and defense are to have completed their discovery process. Discovery is the period during which the prosecutor is supposed to disclose all relevant evidence to you e.g., police reports, scene pictures, audio & video recordings. Ideally, you will have been able to interview key witnesses in this time too. At omnibus, dates for your trial, final pretrial hearing, and jury instruction conference are set.

Trial: you can opt with a jury trial or bench trial (only the judge decides your case). In general one wants to preserve their right to a jury trial, keeping this option open. This requires committing to such at the omnibus hearing and showing up in person thereafter for the final pre-trial conference. A lot of variables go in to ultimately determining whether one should opt with merely a bench trial.

Beyond a Reasonable Doubt: the legal standard which the prosecution must prove for you to be found guilty. It doesn’t mean any doubt but, rather no other logical explanation can be derived from the facts except that the defendant committed the crime. Thus, your attorney’s simple task is to present enough doubtful contradictory evidence to the jury (where six to 12 people have to unanimously agree), that one or more of them question the case. If so, at a minimum a hung jury occurs – and ideally the balance of the jurors concede a render a not guilty verdict.

Plea Bargain: an offer by the prosecution typically reducing the original charge with reduced fines from those required by law. You are more likely to obtain a favorable plea if you have a previously clean or limited criminal record. Judges need not follow pleas at sentencing, yet, typically do. You are afforded the option to withdraw your plea, though, if the judge’s deviation from the plea is unamenable to you.

Deferred Disposition: if your case is poor i.e., the facts make it likely you’ll be found guilty an ideal outcome can be either a deferred prosecution or deferred imposition of sentence agreement. These are both types of pleas. In a deferred prosecution, the prosecutor agrees to discontinue the prosecution – usually for a period of six months. If you behave well during this period, then the case against you is dismissed. In contrast, a deferred imposition of sentence requires that you admit guilt; yet, the court refrains from the final and necessary step of convicting and sentencing you. Again, if you behave well for the deferral period (commonly six months) the matter is thereafter dismissed. But, in either deferral type if you misbehave (another offense besides a traffic violation) during the grace period, the deferral is terminated. Either the prosecution restarts the case against you – having to prove matters from step one, or instead – and unfortunately – if you had a deferred imposition they just sentence you and the matter is now permanently on your record. And, if your deferred sentence included jail time, you’re now headed to jail.

Suspended Sentence: the judge has the option to waive the time you actually serve on the jail sentence portion of a crime you are either convicted of or plead guilty to. For example, most misdemeanors have a 6 month jail sentence. So the judge will sentence you to 6 months all suspended but 4 days. These means you serve 4 days of actual jail time, thereafter you are free to go about your business. But, if in the 6 months following sentencing i.e., while the supsended sentence is running, you misbehave you are subject to being resentenced to more actual jail time. In short, your sentence becomes "unsupspended." So receiving a suspended sentence requires good behavior on your part during the remainder of the suspended portion. Usual provisions you need to abide by while on a suspended sentence are no drinking, attending bars or casinos, and providing a breath test upon request of a peace officer.

Fines & Fees: each crime has a statutorily set maximum fine you can be charged. It's rare to be sentenced to pay the full possible fine. When you are sentenced the court is required to make inquirey into your ability to pay your fines. Make sure you or your attorney requires the court to engage in this inquirey. Regardless, the court will provide you the option of making instalments towards full payment. Depending on your circumstances, these can be quite small. Additionally, courts impose surcharge fees for handling your case. These go to cover court costs, cost of prosecution, and if you had a public defender, a nominal public defender fee. You may also need to pay restitution if you stole something of value (that hasn't been returned) or damaged property that needs to be repaired.

Public Defender: as constitutionally required, those who cannot afford counsel are provided a public defender. Initially, the Judge at arraignment will ask whether you need a public defender. Thereafter, after initially being designated the public defender’s office has a financial resources evaluation you need to complete. If you exceed their thresholds, your public defense will be withdrawn. In general, those living on public assistance, been unemployed for a significant period of time, or students on limited income qualify. Roughly speaking, if you are making over $15,000 a year you may not qualify for a public defender. In general, public defenders are quite experienced particularly more senior staff yet, simultaneously they have very large caseloads….often in excess of 50-60 clients at a time.

Municipal Court: Missoula has three levels of courts. Municipal is almost exclusively criminal with cases arising solely within the city limits of Missoula i.e., Missoula police wrote you your citation or arrested you. Temporary restraining orders can also be issued in Municipal Court, one of the few civil matters Municipal courts hear. Additionally, municipal court is a court of record. This means proceedings are audio recorded. Consequently if you have a jury trial in Municipal Court, you do not get a second chance at a new jury trial on appeal. This contrasts Justice Court, see below.

Justice Court: handles matters where the Missoula County Sheriff has cited or arrested you. Unlike Municipal Court, Justice Court is not a court of record (no audio recording). Therefore, a trial in Justice Court if lost can be appealed “de novo” to District Court i.e., you got a second chance to retry your case. Of note, the presiding “judge” in Justice Court is often not a lawyer by training. Consequently, they are actually called Justices of the Peace. For example, “Judge” Odlin who sat on the bench for many years in Missoula Justice Court was actually a Highway Patrolman in his previous career.

District Court: a step above Justice Court, District Courts have jurisdictions that even exceed county lines. Montana has 22 judicial districts, some that are composed of multiple counties, e.g. the 16th District in southeast Montana covers seven counties or in contrast merely one county such as the 21st District (Ravalli). Missoula’s is part of the 4th District Court. All county level felonies are heard before the District Court, initially all juvenile cases where the defendant was 17 at the time of the infraction, and all appeals from Justice as well as Municipal courts (written appeal only) are heard in District Court.

Common Infractions & Defenses

Disorderly Conduct
Partner Family Member Assault
Criminal Mischief
Dangerous Drugs

Disorderly Conduct requires that you disturbed the peace. A multitude of different acts can qualify as disorderly: quarreling, challenging to fight or fighting, making loud noises, using threatening language, etc.. Common methods to defend against this charge are whatever you did failed to really qualify as disorderly or instead the other party instigated the altercation; thus, the peace was already breached. If so, the prosecution would need to come forward with other witnesses or evidence than the testimony of the other disturbing party.

Assault requires that you caused bodily injury, made unwanted contact, or put someone in reasonable apprehension of bodily injury. It’s a misdemeanor unless it’s committed under aggravated circumstances i.e., you could have caused serious bodily injury in the course of your assault. If the evidence is highly unfavorable for you, and evidence suppression is not an option, often assault can be pleaded to disorderly conduct. More ideally, you may be able to get a deferred disposition.

Partner Family Member Assault is one of the most common, if not most common charges brought before courts. It’s an assault yet on a family member or someone you’ve had or are currently in a relationship with. It’s more serious than basic assault as there is a minimum fine of $100 with maximum of $1,000 and the possibility of a one year jail sentence. Again, if the facts are highly unfavorable, you can often at least plead down to assault with the possibility of a deferred disposition.

Criminal Mischief essentially entails the tampering with or damaging of property of another without consent. Ways to challenge whether criminal mischief in fact occured are ownership e.g., you owned and bought the cell phone you threw out the window, albeit your wife was the one using it, or one can present evidence that in fact you had consent to do whatever you did with the property. Further, one can challenge the required mental state i.e., you need to purposely or knowingly have meant to take the action resulting in damage, as opposed to something accidental e.g., merely dropping the cell phone.

Trespass entails the unlawful entry or remaining on property. The key is whether or not your action has been unlawful. Thus, your case hinges on challenging if your presence was in fact unlawful. Generally speaking one is privileged to enter or remain on property of another unless: 1) this privilege is explicitly revoked or 2) effective posting negated privilege of entry. If there has been a failure by an authorized person to revoke your privilege or alternatively inadequate postings barring access, you could have a valid defense to trespass

Dangerous Drugs encompass a very broad range of substances as defined by Montana’s Controlled Substances Act. Possession, distribution, or even intent distribute drugs all qualify as crimes. Typically the best way to challenge drug charges is seek evidence suppression if the facts support such (see Basic Concepts & Tips above), or possible if you were some kind of bystander argue failure to satisfactorily meet the “possession” criteria. Short of this, one can often get a felony drug charge reduced to a misdemeanor and hopefully a deferred sentence that is ultimately cleared from your record with good behavior.

Theft is very broadly defined in the criminal code. In fact, just the probability that your use, concealment, or abandonment might deprive the property owner of the property is sufficient to deem you guilty. Consequently, theft can be difficult to defend. Often the best way is to have someone else you can finger, with insufficient facts for the prosecutor to otherwise counter you were in fact the guilty party. Theft also requires that you knowingly or purposely took the property. In some circumstances, this may not be the case e.g., unbeknownst to you stolen property was placed on your person.

© 2014 Maser Law PLLC. Information obtained at this site is not, nor is it intended to be, legal advice. Consult an attorney for advice regarding your individual situation. Further, merely contacting Maser Law PLLC does not create an attorney-client relationship.