Criminal Law FAQ

By Bruce T. Davis

A friend or family member has been arrested. What should I do?

Call a criminal attorney. If it is after business hours and you cannot get in touch with a criminal attorney, you can call either the clerk of courts or the facility where the person is being held and ask what needs to be done in order to post bond for the arrestee. For many misdemeanors, a relatively small appearance bond can be posted with the clerk of courts. For felonies, it is best to discuss the options with a criminal attorney before posting bond as the attorney might be able to have the amount of the bond reduced. It is also important to consider what the cost of a legal defense will be before any available funds are spent on bond. If you can only afford either bond or an attorney, the investment in a criminal attorney is a better way to spend your money.

I have just learned that there is a warrant for my arrest. What should I do?

Call a criminal attorney. In many cases, an attorney will be able to have the warrant set aside which will spare you an overnight in jail and save you money that would have been paid towards posting bond. However, in some cases, you will have to turn yourself in. By consulting with a criminal attorney prior to turning yourself in, you can be advised of the best ways to minimize the amount of time you spend in jail.

No charges have been filed against me, but the police want to talk with me. I am afraid that if I do not cooperate and talk with them, I will be arrested. What should I do?

Call a criminal attorney. Do not speak with the police until you have consulted an attorney. If the police have decided to arrest you, you will not be able to talk your way out of it, and they may have asked to meet with you just so that they can arrest you. By speaking to the police you may inadvertently provide them with the piece of information that they need to file a case against you. Even if you are completely innocent, it is best to consult with a criminal attorney before you speak with any law enforcement officials.

I was not read my Miranda Rights when I was arrested. Does this mean that the charges against me will be dismissed?

No. If the police violated your Fifth Amendment rights by questioning you while you were in custody without first making you aware of your Miranda rights, any statements you made to police while in custody will be suppressed (i.e., will not be admissible in court). The case, however, will not be dismissed. This means that the police must have taken control of your person in some significant way (i.e., put you in handcuffs, arrested you, etc.) Also, the Miranda rights do not apply to voluntary statements – statements not made in response to an officer's questions. If you blurt something out before being read your Miranda rights, that statement can be used against you in court.

I am charged with domestic violence or assault on a family member. Will the court dismiss the charges at the request of the victim?

Probably not. Domestic violence cases, like other criminal cases, are brought by the State of Ohio, not by the victim. Therefore, only the prosecuting attorney can drop the charges. If the evidence of domestic violence is weak, the prosecutor might dismiss the case – especially if the victim is unwilling to cooperate with the prosecutor. However, if the evidence of domestic violence is strong (i.e., evidence includes photographs of injuries or property damage, medical reports, or third-party witnesses) the prosecutor will most likely pursue the case even if the defendant and victim have reconciled.

If I did what I am accused of doing, i.e. “I know I’m guilty”, should I just go and plead guilty, or do I need an attorney?

You should consult with a criminal attorney before you decide to plead guilty to the criminal offense with which you are charged. An attorney can often negotiate a plea bargain which will allow you to plead guilty to a lesser offense which carries lesser penalties; even if it is clear that you are guilty of the more serious offense. In other cases, a criminal attorney may find errors or holes in the state’s case which will cause the case to be dismissed or amended to a substantially reduced charge.

I have never been in a situation like this before. How do I decide which criminal attorney I should hire to represent me?

First, you should hire an attorney whose practice is limited to criminal defense. Hiring the attorney who sued your former employer for you or wrote your will to represent you in a DUI case would be like hiring a heart surgeon to operate on your brain. You should enquire what portion of the attorney’s practice is devoted to criminal work and whether they have experience handling cases similar to your own. Remember that a great deal is at stake in a criminal case, far more than a civil case. You could be imprisoned, fined, or have your driver’s license suspended, just to name a few of the potential penalties. Also, trust and the ability to communicate are critical for a good attorney-client relationship. Talk to multiple attorneys before you decide whom to hire and find one with whom you are comfortable. Lastly, while the old adage, “you get what you pay for,” is true in many cases, hiring the attorney who is the most expensive does not always assure the best representation. Some attorneys deliberately set their prices high, hoping that potential customers equate the price with the quality of the representation.

I want to have my criminal record sealed. Am I eligible for an expungement?

A criminal attorney can evaluate your specific case and petition the court to have your record sealed, but the basic expungement rules of thumb are as follows. You must be a first offender. This means the offense you want to expunge must be the only serious offense on your record (minor traffic violations do not count). Traffic offenses are not expungeable. This includes DUI/OVI’s. You must apply in the court in which you were convicted. Along with traffic offenses, upper level felonies, sex offenses, many offenses of violence, and some other crimes are not expungeable.