South King County & Pierce County, WA Criminal Defense Lawyer

I/Criminal Defense

Kent Washington Criminal Defense Attorney

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For those who have been charged with a criminal offense, the first thought is often “how do I stay out of jail?” In Washington, as in other states, the sentencing guidelines for convictions give the judges a narrow range within which to work. Jail time is not out of the question, even for first time offenses. Our law firm will not only work to help you stay out of jail, but also strive to keep your name out of the paper, keep your security clearance at your defense industry job, and help you hang on to your driver’s license if possible. In all cases, we strive for an acquittal first. In some cases, such as when someone is caught in possession of drugs, our best option is to minimize any fine, and obtain the minimum sentence possible.

The types of criminal offenses for which we will provide legal representation includes the following:

• DUI / DWI
• Fraud
• White Collar Crimes
• Drug Offenses
• Domestic Violence
• Felonies
• Misdemeanors
• Sex Offenses
• Juvenile Crimes
• Parole And Probation Violations
• Traffic Violations

Misdemeanors
Many misdemeanors are for non-violent or mischief offenses such as alcoholic beverage control violations, animal fighting, trespassing, unlawful entry, confidence game, credit card fraud, cruelty to animals, disorderly conduct, and operating (driving) after license revocation or suspension and shoplifting. Other similar offenses can be either felonies or misdemeanors, depending on the severity or the frequency of the offense. Some charges that can be either misdemeanors or felonies include possession of a prohibited weapon, public assistance fraud, stalking, unregistered firearms, and welfare fraud.

Sex Offenses
Our law firm will use all of the experience and skill at our disposal to obtain a “not guilty” or “case dismissed” verdict in a sex offense case.
The types of sex offense for which we would provide legal representation and representation include:

• Date Rape
• Indecent Exposure
• Molestation
• Obscenity
• Possession of unlawful pornography
• Prostitution
• Rape
• Child Molestation
• Sexual Assault
• Sexual Battery
• Statutory Rape

Juvenile Crimes

Juvenile crimes can be underage crimes such as smoking, drinking, or truancy, or serious crimes committed by juveniles. Our law firm represents both types of offenses and works closely with the juvenile and other family members.

Parole And Probation Violations

The three most common parole or probation violations are:

• Failing the urinalysis or other drug tests
• Failure to check in with your probation or parole officer or community control personnel;
• Falsifying a monthly report; and
• Subsequent law violations

A parole or probation violation can put you in jail for the full length of any sentence you may have received. Our law office is conveniently located next door to the South King County probation office.

White Collar Crimes

Have you been charged with fraud?

Employees or individuals in a variety of situations can commit white collar crimes. An hourly employee can be accused of employee theft or embezzlement. A CEO can be charged with wire fraud. Any level of employee could be charged with money laundering or securities fraud. A white collar crime is the group of property crimes typically committed to gain a business or professional advantage. White-collar crimes include mail fraud, bank fraud, securities fraud, tax crimes, and environmental pollution. Many of which are charged in federal court.

Our Washington law office has been the criminal defense law firm in a number of white collar crime and fraud cases. Because a white collar crime is almost always concerned with money, and a money trail, the prosecution usually has conducted a significant investigation before an individual is formally charged with the crime. The prosecution believes they have a case with which they can win. They may have phone records, bank records, accounting files, and other documentation. When individuals are charged with a federal white collar crime, the criminal defense attorney is quite often put in a position of damage control rather than achieving an outright acquittal, although an outright acquittal or dropped charges are always a goal.

Our criminal defense law firm recently represented an individual charged with embezzling $1.5 million in from Microsoft. In this case, we were successful in negotiating a reduced sentence, avoiding jail time all together. In yet another case, we were able to help a client avoid criminal charges in a homeowner’s association bank account theft case – and were able to handle the litigation as a civil matter.

Do you need to keep your security clearance?

In addition to the potential jail time that an individual is facing if they have committed a white collar crime, the collateral consequences for a crime of dishonesty can be equally damaging. For those who work in the military-industrial complex, it is critical that he or she keep a security clearance in order to maintain employment. To keep a security clearance may involve strenuous negotiation with the prosecution to maintain a clean criminal record. Public image may also be an issue, and our law office will work to keep your name out of the papers. We strive to handle high-profile clients in a low-profile manner to minimize any public relations fallout.

Helping you Face and Resolve your Problems

If you have been charged with fraud or other white collar crime and need to keep your security clearance, stay out of jail, and maintain your reputation, we urge you to call or contact our Kent Washington law office to schedule an appointment for an initial consultation.

Drug Offenses

Drug Possession and Other Offenses

Many drug offenses, such as drug possession, are felony crimes, which carry serious consequences. Some drug offenses, such as intrastate drug trafficking, are federal crimes.  If you have been charged with drug possession or other drug offense, it is important that you obtain the legal counsel of an attorney with experience in this area. A lot is at stake – including your liberty itself.

At our Sumner Washington law firm, we have worked for several years in this area of law. Pierce County is the meth lab capitol of Washington, and so we have had the occasion to represent several meth users and those arrested for crimes involved in meth lab production. Common drug possession charges are those charged for the use, sale, or possession of drugs such as marijuana, crack, heroin, or cocaine. Lately our law office has seen more prescription drug abuse, such as oxycontin abuse, in our area.

Our law office can provide you with the following:

• A variety of options to use in your defense such as drug programs to help you keep your record clean.
• A criminal defense attorney with a good relationship with the prosecutors. A well-respected lawyer that has earned the prosecutions respect is in a better position to negotiate, or prepare a case for trial.
• Up to date knowledge of the search and seizure laws. If an inappropriate arresting act took place, it provides a challenge for the defense.
• Familiarity with the system and the rules of evidence in drug possession and drug trafficking cases.
• A broad network of treatment facilities contacts and other connections.

Helping you Face and Resolve your Problems
If you have been charged with drug possession, drug trafficking, or any other drug offense, we urge you to call or contact our Kent Washington law office to schedule an appointment for an initial consultation.

Sex Offenses
Historically, rape was a common law crime and defined as unlawful sexual intercourse by force between a man and a woman. Married men by definition could not rape their wives because sexual intercourse in the marriage was lawful. Any other sexual act was not included, although there were separate laws that punished sodomy and bestiality. Force, or at least the threat of force, was required, and a woman had to prove resistance to the act, usually by intense physical struggle. Early statutes required corroboration from independent witnesses before the offender could be found guilty. Rape was a felony and the punishment always included imprisonment or death.

Modern statues have broadened the scope of sex-related crimes. Sexual assault is often defined to include any sexual act done against the will of another. Some state statutes specifically provide that it is unnecessary to establish physical resistance by the victim to prove that the act occurred against the victim's will. The laws are usually gender-neutral so that they protect all victims of sexual assault. Most state laws provide for varying degrees of sexual assault, with the most serious crimes involving physical injury, gangs, or young children. Many states also have passed rape-shield laws, which are rules of evidence, that protect the victim by limiting the use of the victim's prior sexual activity, thereby ensuring the focus of the criminal trial stays on the defendant's conduct.

Other sex offenses can be found throughout most state criminal codes. More and more states are repealing laws aimed at punishing private sexual behavior between consenting adults, such as those criminalizing adultery and homosexuality. However, new sex offenses such as sexual exploitation by a therapist and sexual abuse of children by childcare workers have been added. Almost all states prohibit indecent exposure, prostitution, incest, pornography, and voyeurism.

Sentencing for sex offenders varies widely depending on the nature of the offense. The Supreme Court has banned the use of the death penalty for rape of an adult when it does not involve murder. However, first-degree rape can carry the state's harshest sentences, short of the death penalty. In contrast, indecent exposure may be classified as a simple misdemeanor and carry a minimal jail sentence or fine. In addition to incarceration or fines, many sex offenders are required to undergo treatment plans designed to prevent further sex offenses. Unfortunately, the most common treatments available to sex offenders tend to be behavioral therapy and counseling, which have limited rates of success. More promising results have been obtained with medication and adverse conditioning. Many states have implemented laws requiring sex offenders to register their addresses with police departments once they are out of prison. The police departments are then required to give notice to the community of the presence of the sex offender living in their neighborhood. Laws that provide for civil commitment of serious sex offenders after their prison sentence have been held to be constitutional, provided the government establishes that the offender has a mental abnormality that makes him or her likely to commit further serious sex offenses.

Preparing to Meet With a Criminal Defense Attorney

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Preparing to Meet With a Criminal Defense Attorney

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Fraud
For the most part, there is no single crime called "fraud." However, fraud is an intrinsic part of a number of offenses, most notably those in the theft category. The early theft crime of larceny required a taking of property from the possession of another; therefore using deceit to take the property of another that had been entrusted to the offender was not punishable because it was not larceny. The crime of embezzlement was established to close this loophole in theft law. Embezzlement is committed when the offender fraudulently converts the property of another, which is already in the offender's possession. Fraudulent conversion occurs when the offender seriously interferes with the victim's rights over the property by using it up, giving it away, unreasonably withholding possession from the victim, or seriously damaging the property with the intent to benefit himself and deprive the victim. Fraudulent intent requires a finding that the offender had the specific intent to deceive the victim, and mere negligence in the handling of the property will not sustain a conviction.

Fraud is also at the heart of the crime of false pretenses, which is committed when the offender knowingly makes a false representation of fact with the intent to cause the victim to pass title to his or her property to the offender. The crime of false pretenses requires a false representation; making misleading statements or merely remaining silent does not satisfy the requirement of a false representation. Neither are opinions enough to make a false representation; "In my opinion, your property is worthless," is not a false representation for the purposes of the crime. The false representation must be about an important fact. A false statement about an unimportant fact generally will have little impact on the victim's decision to complete the transaction, and therefore will not support a charge of false pretenses.

Fraud is an important part of the federal mail and wire fraud statutes. The scope of fraud under those statutes is broader than under embezzlement and false pretenses including using tricks, schemes, or devices to defraud; therefore an unimportant misstatement in conjunction with other misstatements or deceptive behavior can serve as one element of a scheme to defraud. In addition, federal crimes can be charged when the offender secures a service through fraud, not just takes property. Other federal crimes that prohibit fraud protect the banking industry and stock market transactions. Statutes prohibit the use of fraud in obtaining government goods or services and in the filing of fraudulent tax returns.

It is important to note that statutes exist to protect consumers against various kinds of business fraud, but they are generally not criminal in nature.

Checklist: Avoiding Behavior the IRS Considers Criminal or Fraudulent
According to the Internal Revenue Code, it is not criminal to reduce, avoid, or minimize personal income taxes by legitimate means. In other words, avoidance is acceptable, but evasion is not. When you avoid taxes, you do not conceal, misrepresent, or make things appear as they are not. Making an honest mistake is not criminal either. It all boils down to whether you intentionally try to deceive the IRS to avoid paying some or all of your taxes. If the IRS determines that your behavior was criminal, you may find yourself paying a fine or, in a worse case, spending time in jail. If you are being investigated for a tax crime by the IRS, it is critical that you consult an attorney who is familiar with both tax and criminal matters.

Although the following list is not all-inclusive, it gives a number of common examples of taxpayer behavior that the IRS considers fraudulent and/or criminal:

• Deliberately underreporting income.
• Taking payments in cash and failing to deposit them in order to avoid tax consequences.
• Inflating the value of business expenses
• Creating false business expenses for tax purposes.
• Using a false social security number.
• Keeping two sets of financial records for your business.
• Claiming an exemption for a spouse when you are not married.
• Claiming an exemption for a dependent whom you never supported.
• Destroying your books to conceal tax evasion.
• Creating false checks or receipts to support deductions that do not exist.
• Denying that deposits into your accounts are income when they are income.
• Concealing financial accounts.
• Transferring assets to conceal them.
• Reporting personal expenses as business expenses.
• Claiming more charitable deductions than were made
• Failing to file tax returns even if you make a substantial amount of income.
• Making false statements to the IRS under oath.
• Failing to file returns despite having been contacted in prior years by the IRS for failing to file.

Misdemeanors
Misdemeanors are less-serious crimes. They are generally punishable by a fine or incarceration in the county jail for less than one year. The prosecutor does not usually convene a grand jury to investigate and charge misdemeanor offenses, although such charges can be generated along with felonies. Most misdemeanors are charged by written indictment and in many jurisdictions, defendants are not entitled to a court-appointed lawyer. Often, misdemeanors are handled by special courts with abbreviated procedures. For instance, the defendant may have to request and pay a fee in order to get a jury trial. Misdemeanor traffic offenses may have pre-set penalties in the form of scheduled fines.

The consequences for misdemeanor convictions are generally less severe than for felony convictions. A person with a misdemeanor crime on his record may still be able to serve on a jury, practice his or her profession, and vote. Serious felonies like assault and sexual abuse may have misdemeanor charges as part of the statutory scheme. For instance, assault causing severe bodily injury is a felony, but simple assault that leaves no lasting injury is a misdemeanor. Likewise, rape is a felony, but a lascivious act is a misdemeanor.

Quiz: Will I Be Arrested?
When a crime is committed, a person accused of the crime can be arrested by the police. However, it is not always easy to tell when a crime has actually been committed, or who may be arrested. The following quiz provides some examples of when such difficulties may occur.

Q: Roger takes his neighbors' car without permission and drives it around for a night. He then sneaks it back into their garage. The next morning, the neighbors notice a large dent on the hood of their car that was not there before. They call the police. The police arrive and knock on Roger's door to ask him if he saw anything suspicious the night before. Roger willingly tells them that he took the neighbor's car and was involved in an accident. Can he be arrested?
A: Yes. Roger has admitted to committing a crime in taking his neighbor's property without permission and, in addition, causing damage to it.

Q: Keith is walking down the street one day when he sees an elderly woman being attacked by a young woman. He does not do anything to help the elderly woman. Can he be arrested?
A: No. Keith cannot be charged with a crime for failing to help the elderly woman. Some people may argue that Keith had a moral duty to assist her, but he did not have a legal duty to come to her aid.

Q: A man was recently murdered in Sarah's neighborhood. The police have questioned a number of people in the area, and have developed evidence that Sarah likely committed the crime. Can they arrest her?
A: Yes. If the police have probable cause to believe that Sarah committed a crime, they may arrest her on suspicion of murder. Arresting Sarah does not mean, conclusively, that she actually committed murder. That issue will be left for Sarah's murder trial.

Q: One night, Jerry and Kevin are at a bar, and Kevin tells Jerry that he wants to rob a local convenience store. As they are leaving the bar, Jerry agrees to drive Kevin to the store, knowing that Kevin is going to rob it. Kevin does in fact rob the store as Jerry waits in the car. Can Jerry be arrested?
A: Yes. Jerry can be arrested as an accomplice to the crime. He acted in a way that aided Kevin in committing the robbery.

Q: Joel has sent a series of letters to senior citizens in his community, asking them to donate money to a fictitious charity in exchange for receiving a commemorative plaque. He receives thousands of dollars in the mail, which he then spends on a new stereo. Through a series of complaints from the senior citizens, who never received their plaques, the police are led to Joel. Can he be arrested for duping the senior citizens?
A: Yes. Although Joel did not physically injure the seniors, he did engage in mail fraud, which is a "white collar" crime. He can be arrested for cheating them out of their money.

Q: Kim is walking down the street one day wearing a bulky parka. Two police officers are cruising the neighborhood in their squad car and see her, and suspect that she might be concealing a weapon under her coat. Can they arrest her based on that suspicion?
A: It depends. This is a touchy area of law concerning the right of citizens to be free in their movement and free from police interference when they are not committing an obvious crime. The police can stop Kim and ask her questions about what she is doing, and where she is going. They can also perform a "pat-down" of her clothing if they have reasonable suspicion that she may be concealing a weapon. They cannot immediately arrest her, however, based only upon the suspicion that she "looks" like she is doing something wrong.

Q: Larry and Michelle are roommates. The police believe that Larry may be involved in a local prostitution ring, and they arrive at his apartment one night hoping to question him about his involvement. They ring the doorbell, and Michelle answers the door. When she opens the door, she holds out a large bag of cocaine. Michelle is a drug dealer and had expected one of her drug buyers to be at the door, not the police. Can the police arrest her?
A: Yes. Although the police were not at Michelle's door to question her, or initially to arrest her, they caught her with an illegal substance in plain sight. When the police witness or stumble upon the commission of a crime, they may arrest the suspect even though they did not have that intent from the start.

Q: Stan is having a sexual relationship with a fifteen-year-old girl. Stan thinks that the girl is actually eighteen years old. During one of their meetings together, the girl produces a bag of marijuana. They are laying in bed, naked, smoking a marijuana cigarette when the police show up at the door. Stan lets them in. It turns out that the police have been suspicious of Stan's activities for quite some time and have been watching him under surveillance. Can Stan be arrested? Can the girl be arrested?
A: Potentially, both Stan and the girl can be arrested. Stan can be arrested for having a sexual relationship with a minor (even though he believed she was legally an adult). He may also be charged with possession of a controlled substance. The girl can be arrested, as a juvenile offender, for possession of a controlled substance. There is a chance, as in all criminal cases, that the prosecutor will favor leniency for the girl in exchange for her testimony against Stan, or that the prosecutor will determine for one or another reasons that no charges should be filed against the girl. In addition, Stan and the girl may both argue that their right to privacy has been invaded. However, that right, if it exists at all, is probably outweighed by society's interest in protecting minors from sexual abuse or assault and society's interest in eradicating drug use. In addition, Stan let the police into the room, in contrast to a situation where the police entered unannounced.

Q: Karen is shopping in a drug store when she decides to steal a pack of gum that is sold for $1.09. As she is walking out the store, the store security guard stops her and asks her to empty out her pockets. When she pulls the gum out of her pocket, and lamely tries to explain why she has no receipt for it, the guard informs her that he has a store video of her stealing the gum and that he is going to call the police. Can Karen be arrested?
A: Karen can be arrested for shoplifting. It does not matter that the gum was an inexpensive item. She still tried to take it without paying for it. She will likely not be given a lengthy jail sentence for stealing one pack of gum, but she may have to pay a fine or perform limited community service on probation if she is found guilty.

Q: Lynn is awoken one night by the sound of breaking glass. He grabs the baseball bat that he keeps under his bed and walks out into his living room. Lynn sees a man crouched over his stereo. He sneaks up behind him and proceeds to beat the man with the baseball bat until he has, unfortunately, killed him. Can Lynn be arrested?
A: Yes. While civil law provides that Lynn be entitled to use force to defend his property, that force must be reasonable in light of the circumstances. Deadly force, such as beating someone to death, is only allowed in situations where Lynn had an immediate fear for his safety or the safety of others. If the man had stood up and fired a gun in his direction, Lynn's reaction may have been more reasonable. However, as it is, Lynn may be charged with a crime because he killed the intruder.

White Collar Crimes
White collar crime is a term that was first used by a sociologist in 1939 to describe criminal activity by members of the upper classes in connection with their professions. His point was that this type of crime was barely acknowledged by the criminal justice system and rarely prosecuted. Today, the most common definition of white collar crime no longer focuses on the social status of the offender but rather on the type of conduct involved: using deceit and concealment to obtain money, property, or services, or to secure a business or professional advantage. The federal government has passed a variety of laws in the last fifty or sixty years to deal with the problem of white collar crime, using its jurisdiction under the commerce, postal and taxing powers of the federal Constitution to reach all levels of business activity.

White collar crimes follow the general principles of criminal liability in that each crime requires a bad act, a criminal intent, and causation. The defenses to white collar crime are the same ones applicable to all crimes and include incapacity, insanity, intoxication, and duress. Of particular note for white collar crime prosecutions is the defense of entrapment. Entrapment occurs when the government has enticed a person to commit a crime he or she otherwise would not have committed. The majority of courts look at the defense of entrapment through the eyes of the individual defendant, and the focus becomes the propensity of that defendant to commit the crime when determining whether he or she has been entrapped. Other courts focus on the government's conduct from the perspective of whether it is outrageous in terms of convincing a person to commit a crime.

Mail fraud and wire fraud are white collar crimes. The first federal mail fraud statute was passed in 1872 to combat the use of the postal system in counterfeit money schemes. Today's mail fraud statute prohibits the use of the U.S. mail or private carriers in a scheme to defraud or obtain money, property, or services by fraudulent means. Wire fraud is an act that parallels mail fraud by using wire, radio, or television in a scheme to defraud or obtain property by fraudulent means. The punishment for a violation of these laws is up to five years in prison and a fine. However, if the mail fraud affects a financial institution, the punishment is up to thirty years in prison and a $1,000,000 fine.

The Federal Securities Acts of 1933 and 1934 make it a crime, punishable by up to five years in prison, to willfully violate provisions of these acts. The most common prosecutions include insider trading, failing to file required reports, or filing false reports. The government must prove that the lawbreaker committed a deliberate and intentional act with knowledge of wrongdoing. Insider-trading prohibitions originally applied only to a person who used nonpublic material facts learned in the course of his or her job to gain a personal advantage over the shareholders of a corporation by buying or selling the corporate stock. However, the prohibitions have been extended to an "outsider" who uses nonpublic material information to gain an advantage, such as a printer who uses confidential information gained in the course of printing corporate documents to make a profit on the stock market, or a person who acts on indiscreet talk overheard in an elevator.

Statutes prohibiting obstruction of justice, perjury, or false declarations are designed to ensure the integrity of the legal system. It is a crime to assault a process-server, influence a juror through writing, picket, parade, or demonstrate near a courthouse, or record or observe jury deliberations. Perjury is committed when a person willfully and knowingly makes a false statement under oath in a judicial proceeding. A false declaration occurs when a false statement is made to a United States grand jury. In order to gain a conviction, the government must prove beyond a reasonable doubt that the statement was in fact false, not merely misleading, and that the person believed the statement was untrue when he or she made it. The penalties for perjury and false declarations are up to five years in prison and a fine.

In order to combat public corruption, federal attorneys may charge people with the crimes of bribery of public officials and filing false statements. Both the person offering the bribe and the person taking the bribe can receive up to fifteen years in prison and disqualification from public office if convicted of a crime under the act punishing bribery. The government must prove that something of value has been given, offered, or promised to a federal public official to influence an official act. The corrupt official need not actually act, but proof that the official intended to perform the corrupt act is required. If there is no proof that the official intended to commit the corrupt act, he or she can still be charged with accepting gratuities, which only requires that the official sought or accepted something of value. The crime of accepting gratuities carries a two-year prison term. A federal statute originally passed in 1862 to prohibit false statements in the filing of military claims now prohibits making false statements, falsifying material facts, or knowingly using a false document within the executive, legislative, or judicial branch of the U.S. government.

Tax crimes are also included under white collar crime. The most common tax crime charged is that of failing to file a federal tax return or failing to pay federal taxes. Other tax crimes involve assisting others to file a false return, interfering with the IRS by force, or the forcible rescue of property that has been seized by the IRS. All tax crimes require the government to prove that the lawbreaker willfully, voluntarily, and intentionally violated a known legal duty. In order to convict on tax evasion, the government must also prove a tax deficiency and an affirmative act of evasion or attempt to evade payment of the tax.

Environmental crimes may be prosecuted against individuals or corporations that violate various federal statutes concerning clean water, safe drinking water, toxic substances, solid waste disposal, pesticide use, clean air, and atomic energy. The federal Environmental Protection Agency (EPA) usually investigates complaints and then refers them to a special unit in the Department of Justice for prosecution. Most of the environmental statutes are concerned with regulation of certain industries or practices, but contain criminal penalties for a defendant (individual or corporation) that knowingly violates the provisions of the law. Many statutes have schemes of increasing penalties for repeat violations. Courts have held that corporations can be punished when illegal acts or omissions are committed by corporate agents acting within the scope of their duties for the benefit of the corporation.

Computer crimes, or Internet crimes, were formerly prosecuted under mail or wire fraud statutes. However, in 1984 Congress passed the first criminal statute directly aimed at computer use. Today, the statute prohibits seven kinds of conduct relating to computer use. It is a crime punishable by up to ten years to knowingly access a computer without authorization to obtain confidential national security information and willfully communicate it to one not entitled to receive the information. Other parts of the act criminalize browsing in government or other protected computers in a manner that affects the official use of the computer; gaining unauthorized financial information from banks or government agencies; accessing information in a protected computer to further a scheme of theft; knowingly infecting a computer with a virus that causes damage to the program; interstate trafficking in passwords; and threatening to cause damage to a protected computer for the purpose of extortion. The penalties for violations of the act range from one year to twenty years in prison and fines.

Victims' Rights
The function of the criminal justice system is to punish criminal behavior by the arrest, prosecution, and sentencing of those who violate the law. However, because we live in a free society, the system must be appropriately balanced between the power of the government and the rights of the individual. Therefore, procedures have been established to protect the rights of the criminally accused. The United States Constitution guarantees certain rights to a person accused of a crime, including the right to a trial by jury in open court, the right to be represented by a lawyer, and the right to be free of cruel and unusual punishments. Other rights afforded to all people, like the prohibition against unreasonable search and seizure, also apply to those charged with a crime.

Over the years, the emphasis on the rights of the accused has led some people to conclude that criminal offenders are treated better by the system than are the victims of crime. In a typical scenario, the police seem more interested in getting information about the criminal and the crime than taking care of a crime victim. The prosecutor seems more interested in building his case against the accused than alleviating the crime victim's suffering or fear of testifying. The victim can seem peripheral to the main action and is often uninformed and not consulted when major events take place in the case.

In recent years, a growing victims' rights movement has lead to the implementation of a variety of measures to correct this perceived imbalance in the criminal justice system. In 1982, Congress passed the Victims and Witness Protection Act, which makes it a crime to intimidate a witness or retaliate against a person who testifies or provides evidence for the prosecution. In addition, the act allows a prosecutor to bring a proceeding for a restraining order to protect the victim, thereby alleviating the need of the victim to hire a private attorney to secure a protective order if one is needed. A person convicted of retaliation faces a ten-year sentence that can be increased to twenty years for attempted murder of the victim or murder if the victim is killed. Many states have, similarly, passed victims' rights laws.

Many state and federal laws require a criminal offender to make restitution to the victim, and the court will order restitution when the offender is sentenced. The offender is ordered to pay the victim a sum of money designed to compensate the victim for the monetary costs of the crime, such as medical bills, destroyed property, and lost wages. By federal law, under the Mandatory Victims' Restitution Act of 1996, restitution is required where a violent crime has been committed and for certain other, limited offenses.

Sentencing schemes have also been revised to include a time and place for victims of crime and their families to address the court. The victim or family members are given a chance at the sentencing hearing to tell the judge, in writing or in person, how they have been affected by the crime and their opinion regarding an appropriate sentence. In 1997, Congress passed the Victim Rights Clarification Act which confirms that a victim cannot be prevented from attending a federal criminal trial based on the fact that they are expected to testify at the sentencing phase of the trial. Because victims of crimes can include family members of deceased crime victims, the Victim Rights Clarification Act permits certain family members to be present during capital trials.

Victim-offender mediation programs focus on the need for a victim and perpetrator to meet face-to-face and discuss the crime. Participation is voluntary for both victim and offender and the goal of the program is to arrive at an agreement on how the offender can redress the harm he or she caused.

Other measures that address the concerns of crime victims include the use of victim advocates. Sometimes the advocates are funded by the prosecutor's office and sometimes they are part of the court system. Their function is to assist victims in all aspects of the criminal proceeding. The advocates should keep the victim informed about the progress of the case and explain the basics of the procedure. Victim advocates may also assist battered spouses in getting restraining orders against their abusers and inform them of community resources.

Finally, the system is doing more to notify and protect victims of crime when the offender is released from jail. Laws such as Megan's Law in New Jersey have been passed in many jurisdictions. Megan's Law requires certain convicted sex offenders to register with the police in the neighborhoods where they live and requires the police to notify members of the public about the presence of the offender. Currently, proposed legislation tentatively titled the No Second Chances for Murderers, Rapists or Child Molester's Act of 1997 (or "Aimee's Law") is being considered in Congress. This Act would penalize a state that releases a convicted murderer, rapist or child molester from prison when that criminal later commits a similar offense in a different state. Domestic abuse statutes often require the government to notify the victim whenever the offender is released from jail, even during the pre-trial period.

Ten Rights of Crime Victims

Many aspects of criminal law focus on the rights of the criminal. However, recent attention has been focused on the rights of the victims of crimes, who often suffer great emotional, if not physical, injuries at the hands of the criminal. All fifty states and the federal government now have laws that protect victims. In many states, a victim is considered to be the person who directly suffers the effects of the crimes (such as the person who is murdered) and immediate family members who suffer the secondary effects of the crime (such as the loss of a loved one). If you have been a victim of a crime, you should know that there are ten major rights that you may have.

You have the right to seek a criminal complaint against the criminal. As soon as you can, you should contact your local law enforcement agency and report the crime to them. After the police investigate the matter, they may choose to arrest the individual. A prosecutor will then determine what crimes should be charged.

You have the right to ask for issuance of a criminal complaint if the police decide not to arrest the alleged criminal. You can usually file an application for such a complaint with the court in the place where the crime occurred. If the court, after an investigation, decides not to file the complaint, you can appeal that decision.

You have the right to testify in a probable cause hearing to determine if a criminal complaint should be transferred to another court to be heard. In a probable cause hearing, you will be required to answer questions posed by both the prosecutor and the defendant's attorney.

You may be called as a witness at trial. If so, you will be required to testify under oath concerning the crime and will be asked questions by both the prosecutor and the defendant's attorney. You have the right to be present in the courtroom during the trial of the defendant.

If the defendant is found guilty, you have the right to address the court and jury either in person or writing to describe the impact the crime has had upon you and your family. You will be allowed to make an "impact statement" regarding what punishment you feel would be appropriate for the defendant. Your victim impact statement is important. It will be used prior to the sentencing phase, and it may be reviewed on appeal. It will also be referenced in any later parole hearings.

You may have rights in some states to receive victim services and protections. These rights may include the right to the assistance of a victim's rights worker, personal security and protection services, crisis counseling, emergency transportation services, assistance in the return of recovered personal property, and other rights.
You have the right, before, during, and after a trial, to be free from harassment about the case. If you feel that you are being harassed, tell the prosecutor or check to see whether the court has a victim witness representative to help you.

You may have the right to monetary compensation for any physical or emotional injury the crime caused. You may be entitled to payment for crime-related medical expenses, crime-related mental health services, and lost wages. If you have a loved one who was killed, you may be entitled to compensation for loss of services of the deceased, the costs of funeral and burial expenses for the deceased, and your own medical or mental health care expenses incurred in dealing with your loss, although there may be exceptions to this compensation.

In many states, you have the right to be notified if the defendant is going to be released. You may also have the right to be notified if the defendant escapes from prison or jail.

You have the right to access to the courts to file a lawsuit if your rights and protections as a victim are not respected.

Traffic Offenses

Traffic control is an issue of immense proportions. The first traffic laws and regulations began to appear in the 1920s and they now constitute a large part of most state statutes. More than ninety percent of the people in this country over the age of sixteen are licensed to drive, and there is more than one car registered for each one of them. This translates into trillions of miles driven each year with millions of traffic infractions. The criminal justice system would quickly be overwhelmed if each infraction required full criminal trials. Therefore, traffic violations have been divided into three categories: felonies, misdemeanors, and infractions or violations.

Traffic infractions or violations are strict-liability crimes. This means that no particular criminal intent is required to convict a person of the offense. The only proof needed is that the person committed the prohibited act. Strict-liability traffic offenses typically include such offenses as failure to use turn signals, failure to yield, turning into the wrong lane, driving a car with burned-out headlights, failure to use tow bars when towing another vehicle, parking on a yellow curb, parking in a handicap spot without the required sticker, overdue parking meters, and exceeding the speed limit. Many jurisdictions provide for administrative processing of some or all traffic violations, thereby removing them from criminal court altogether. In those cases, an offender is not subject to incarceration or large fines and is not entitled to a lawyer or a jury trial. (The fine for speeding tickets, however, can be quite large, based on the number of miles an hour over the speed limit.) Conviction of these traffic violations can affect a person's driving privileges and insurance rates.

The primary purpose of traffic-violation regulations is to deter unsafe driving and to educate and reform bad drivers. Studies have shown that traffic offenders generally keep amassing traffic violations, and that most people obey the laws, even when there is no perceived safety reason for doing so, such as waiting for a green light at 2:00 a.m. Compliance with the laws increases when drivers believe they will be caught and decreases when they perceive they can get away with a specific infraction.
Almost every traffic violation becomes a misdemeanor or felony if it involves injury to a person or destruction of property. A person who changes lanes without signaling and hits another car can be charged with the misdemeanor crime of reckless driving. Additionally, if the lane-changer was attempting to inflict serious bodily injury and the other driver is killed, the driver could be charged with vehicular homicide. Some traffic violations are defined as misdemeanors or felonies, such as driving while the driver's license is revoked or leaving the scene of an accident. A person accused of these more serious traffic violations is entitled to all criminal procedures, including the right to a court-appointed attorney and a jury trial.

Prisoners' Rights
Prisoners do not have the same rights as persons who are not incarcerated. However, prisoners still have the protection of certain constitutional rights.

Prisoners are entitled to due process in decisions that discipline them, classify them, or otherwise create additional restrictions on their liberty within the prison system. Due process considerations often require that a prisoner receive advance notice of charges brought against him, which may further restrict his liberties. Sometimes a hearing may be required where the prisoner can present evidence, introduce witnesses, and cross-examine witnesses testifying for the state.

If the government seeks to transfer a prisoner to a mental institution, the prisoner must be given notice of the proposed transfer and his rights regarding that transfer. Those rights include the right to a hearing before an independent tribunal and written notice of the reasons for the tribunal's decision.

Although prisoners' rights to property and privacy are limited, they are entitled to some protections against infringement of those rights. If government action results in the loss of property, for example, the prisoner's rights may have been violated.

Example: A prisoner is injured. While in the hospital, the prisoner's property in his or her cell is stolen. Because the prison had control over the prisoner, the cell, and the property, a court may find that the prison must take steps to protect the property while the prisoner is away.

Prisoners' privacy rights are not as comprehensive as the rights of persons outside of prison. However, it is against federal law to eavesdrop on and disclose the contents of a private phone conversation. This protection applies even where one of the parties to the conversation is in a federal prison.

A prisoner who contends he or she has been wrongfully imprisoned is entitled, after meeting certain requirements, to petition a federal court for a writ of habeas corpus. A writ of habeas corpus is a court order demanding that a prisoner be released. In order to make this right meaningful, a prisoner must have access to the court system. This includes access to a law library or someone trained in the law. A prisoner generally has the right to meet with his or her attorney. However, a prisoner can be limited in the number of times he or she appeals his or her case or petitions the court for a writ of habeas corpus. These limitations do not violate the prisoner's constitutional rights.

The Eighth Amendment prohibition against cruel and unusual punishment protects prisoners from prison conditions that are barbaric. Prisoners must have adequate food and medical treatment. Additionally, prisons mare limited as to the number of prisoners that can be held in one cell.

Many of the other constitutional protections provided to non-incarcerated individuals also apply to prisoners. For example, prisoners are entitled to freedom of speech and freedom of religion. However, the government's interest in a secure prison environment may justify restrictions on those freedoms, which would not be allowed outside a prison. Prisoners are entitled to make requests under the Freedom of Information Act (FOIA). Prisoners are even afforded some minimal protection against unwarranted searches and seizures.

DUI/DWI

"Driving Under the Influence" (DUI) and "Driving While Intoxicated" (DWI) are two names for the crime of drunk driving. Other statutory names for this crime are "Operating Under the Influence" (OUI) and "Operating While Intoxicated" (OWI). The different names for the crime reflect differences in the state statutes that define the crime. However, all the statutes have the common purpose of punishing drunk driving and driving under the influence of illegal drugs.

The first element of the crime is "driving" or "operating." This language is designed to describe the level of control a person must have over the vehicle. In many states, the vehicle does not actually have to be moving, and a person sitting behind the wheel of a car, whether or not the engine is running, can be convicted of driving or operating the car. Likewise, courts have found that a person steering a car being towed by another car could be tried for the crime of drunk driving. While passengers are generally not considered drivers or operators of vehicles, they can be if they grab the steering wheel or try to take control of the vehicle.

The definition of "vehicle" is broader than "motor vehicle." A vehicle can be any device for transporting people or goods. A motor vehicle, by contrast, requires that the device be powered by a motor. These definitions encompass cars, trucks, motorcycles, and motor boats. A question can sometimes arise when the vehicle is inoperable and a distinction can be made between a vehicle that is immobile and inoperable. Another element of the crime is its location. Earlier statutes sometimes included explanatory phrases such as "on the public highways" which led courts to conclude the crime did not apply to persons who drove on private property, including parking lots. However, most statutes now simply require proof that the crime took place within the state.

The underlying purpose of the drunk-driving laws is to prevent operation of a powerful machine when a person is too intoxicated to have adequate control. The intoxication element is proven by one of two methods: (1) showing a certain level of blood alcohol or illegal drugs in the operator's system, or (2) showing the person was impaired. BAC is the method most often used. It does not rely on anyone's observations of the defendant's conduct, but rather on the results of a blood or breath test. A common statutory scheme requires a person suspected of being drunk or under the influence of drugs while driving to give a sample of their breath or blood for testing. This requirement is called implied consent. The statute provides that by operating a motor vehicle, the operator has given his or her consent to be tested. Once the sample is given, it is analyzed by a machine that measures the concentration of alcohol in a person's blood. The most common limit for blood-alcohol content is .08, however, the limit varies from jurisdiction to jurisdiction. In jurisdictions who employ the implied consent rule, any person who tests over the limit or has the presence of drugs is legally intoxicated. The only way to challenge the charge is to show there was some failure in the test procedure, such as a malfunctioning machine, improper sampling, foreign substances in the mouth (in the case of a breath test), or improper preservation of the evidence.

In contrast, proof of impairment may be based on the facts and circumstances surrounding the incident. It relies on eye-witness testimony, statements of the defendant, and circumstantial evidence. The actual amount of alcohol in a person's blood stream is irrelevant since the focus is on whether the ability to drive has been impaired. Standard police tests for impairment include having the defendant walk a straight line with one foot placed precisely in front of the other; closing the eyes and standing with arms held out from the body and touching the tip of the nose when instructed; reciting the alphabet; and counting backwards. Other signs of impairment are the officer's observations of the defendant's driving, which often leads to the stop. Driving too fast or too slowly, weaving from lane to lane, and going through stop signs have all been used as evidence to demonstrate impaired driving. A statement by a driver about how much he or she had to drink, and how recently, is also used as evidence of impairment when supported by testimony about the probable effects of that amount of alcohol ingested at that time on a person's physical abilities.

Punishment for drunk driving has become increasingly severe in the past twenty years. In earlier days, people convicted of drunk driving often faced little real punishment if they had not injured anyone or destroyed any property. However, modern laws typically provide for significant jail time and large fines for all offenders. First-time offenders may be given a "break," such as a suspended sentence conditioned on treatment for substance abuse or attendance at drunk-driving school. The penalty for second or subsequent offenses, however, often includes mandatory minimum jail or prison sentences that cannot be suspended or waived, and stiff fines. The punishment also usually includes revocation of driving privileges for a certain period of time, but it is important to note that the most severe restrictions on the offenders' driving privileges usually come from the state's administrative regulations, which are not considered part of the criminal sentence. In fact, many defendants have unsuccessfully attempted to argue that a suspension or revocation of their drivers' licenses by the administrative agency in addition to the criminal sentence is double punishment that is barred by the double jeopardy clause of the Constitution.

DUI/DWI FAQs

How serious is DUI/DWI?
DUI/DWI is a serious problem. Thousands of Americans are killed each year in DUI/DWI accidents. Although many of those accidents result in the death of the intoxicated party, a significant and unfortunate number involve the death of "innocent" parties who were in the wrong place at a time when someone chose to drive a car while impaired. DUI/DWI is dangerous for those individuals who choose to operate a car under the influence, and for those individuals who are on the road at the same time. In addition to the severe physical injuries that may result from a DUI/DWI accident, there are also serious emotional and mental scars that may never fully heal for both the offenders and their victims.

Is it "safer" to drink beer, wine, or hard liquor in excess?
Any type of alcohol is dangerous when consumed in excess. Different types of drinks contain different concentrations of alcohol, or what may be called "proofs." The proof rating is two times the alcohol concentration. Therefore, 200 proof liquor has a 100 percent alcohol concentration. Most hard liquors have a higher alcohol concentration than most wines, and most wines have a higher alcohol concentration than most beers, meaning that it may take fewer drinks containing hard liquor or fewer glasses of wine than beers to become intoxicated. However, the alcohol concentration of a drink is not everything. You also have to consider the size of the drink that you are consuming. Therefore, a shot glass of hard liquor, which is usually only about 1-1/2 ounces of alcohol, may end up having the same effect as one five-ounce glass of wine or one twelve-ounce beer.

Drinking any alcoholic beverage to excess is never a good idea. You may seriously injure yourself or others if you decide to operate a car. However, even if you decide not to drive, you may also suffer other physical injuries. Excessive alcohol consumption over a long period of time can cause damage to the kidneys, liver, heart, and brain. Excessive use of alcohol within a short period of time can also lead to death.

What is a blood alcohol content?
Blood alcohol content (BAC) or blood alcohol level (BAL) is a measure of how much ethanol is in your system. The ethanol level in your blood is a byproduct of the broken down alcohol that you consumed. BAC and BAL are measured in a scientific manner, which calculates the ratio of ethanol to blood within your system. Therefore, if you have a BAC of .15, you have .15 grams of ethanol per 100 millimeters of blood in your system. In most jurisdictions, if your BAC or BAL is above .10, and you are operating a car or other vehicle (including some machinery), you are breaking the law.

You may still be charged with DUI/DWI even if your BAC or BAL is under .08

Do I have to take a breath analyzer test?
A breath analyzer test measures a person's BAC or BAL. The amount of ethanol that is in your system is the same as the amount of ethanol that is "on" your breath when you exhale. As a result, police are able to test your BAC or BAL by having you breathe into a breath analyzer. Whether you are required to take the test depends on the law of the state you are in at the time you are pulled over. Under the law in some states, if you refuse to submit to a breath analyzer test or other similar test for measuring your BAC or BAL, such as a blood test, your license will automatically be suspended. If you are later found to have not been intoxicated or impaired, your license may still be suspended in some states as a result of your failure to cooperate.

Can I be charged with DUI/DWI for driving after taking drugs?
Yes. If you operate a car under the influence of drugs such as heroin, cocaine, marijuana, or any other illegal substance, you can be charged with a crime. In addition, it is not only illegal drugs that can get you into trouble. Many prescription medications and some over-the-counter medications carry with them specific warnings that they may impair abilities and should not be used while operating any motor vehicles. Check the labels on all medications carefully. Do not get behind the wheel if you are taking any medications that are incompatible with safe driving.

What will happen if I have more than one DUI/DWI conviction?
The consequences of multiple DUI/DWI convictions depend upon the state in which you received the convictions. In most jurisdictions, there is a "step-up" method for handling multiple DUI/DWI convictions for the same person. In some states, a person will be required to pay a fine and perhaps serve a minimum term of imprisonment for a first conviction, in addition to having their license suspended. For a second offense, some states may increase the fines and imprisonment or term of suspension. Additional offenses may result in driver's license revocation, incarceration, and the loss of driving privileges for life. Additionally, in some states, a judge may order that the offender participate in an alcohol or drug treatment and education program. Of course, if you seriously injure or kill another person while operating under the influence, you may face additional charges and civil lawsuits.

Are "alternative" penalties appropriate for DUI/DWI?
In many cases "alternative" penalties are allowed in DUI/DWI cases. A judge hearing your case may have discretion in deciding how you should be punished. In situations where you have seriously injured or killed another person, the judge may not have such discretion, but in first time offenses, or in less serious matters, a judge may be able to require you to perform community service, such as giving talks about the dangers of drunk driving. In other situations, a judge may require you to place a license plate on your vehicle or a mark on your driver's license that indicates that you have been convicted of DUI/DWI.

Should I get an attorney if I have been charged with DUI/DWI?
Although you are not required to have an attorney, it is advisable to retain a defense lawyer if you have been placed under arrest or charged with DUI/DWI. These laws are strictly enforced and an experienced DUI/DWI attorney can help protect your rights. Some states require that the police provide you with a list of local DUI/DWI defense attorneys. Your chances of successfully making defense arguments or finding mistakes that may have been made in your arrest are much greater if you have an attorney assisting you. If you are faced with a DUI/DWI charge, an attorney is your best bet for avoiding or reducing the penalties or imprisonment you face.

Juvenile Law
In the past, it was felt that children under the age of seven were mentally, and therefore legally, incapable of committing a crime. Children between the ages of seven and fourteen were presumed to be incapable of committing a crime, but if it could be proven that they knew the difference between right and wrong, they could be convicted of any adult crime. If they were convicted, they received adult penalties, even death. Views about children's criminality began to change in the 1800s and reformers emphasized the need to separate children from adult criminals by building separate children's houses of refuge. These facilities stressed education in moral and religious values as well as vocational skills consistent with their philosophy that children who committed crimes needed to be guided to develop into law-abiding citizens rather than be punished. Children were placed in these facilities, often after very informal procedures, and often for "non-crimes" such as running away from home, skipping school or disobeying their parents.

Today, elaborate and complex procedures govern every aspect of the modern juvenile-justice system. Most state juvenile systems today meet the guidelines established by the Juvenile Justice and Delinquency Prevention Act passed by Congress in 1974. The act currently requires that states implement policies to give children some core protections. Children cannot be held in a locked facility if their only offense is a "non-crime" like running away from home or breaking curfew. These so-called status offenses must carry no criminal sanction, although they may trigger the need for a social-service investigation into the child's welfare. Secondly, the act requires states to separate children from adult criminals. Children may not be held in adult jails or prisons for more than six hours (twenty-four hours in rural areas). If they are held in an adult facility for any length of time, they must be physically separated, without even sight or sound contact, from adult offenders. Finally, if a state finds that it has a disproportionate share of minority children confined in secure facilities, it must address the issue. (Minority children make up one-third of the population as a whole, but account for two-thirds of the children in secure facilities. Studies have shown that they are more likely to be put in jail than are non-minority children who commit the same offenses.)

Children who are too young or too old will not be prosecuted for juvenile crimes, usually called delinquent acts. Some states use the old common-law lower age limit of seven years; others use ten years. Children under these ages may be referred to the child welfare department but they will not be the subject of a delinquency proceeding. Most states use eighteen years as the upper limit of juvenile court authority, but some have lowered the upper limit to seventeen or sixteen years. In addition, some classes of crimes, such as traffic offenses, are exempted from juvenile court jurisdiction.

Moving a child from juvenile court to adult court for criminal proceedings is a process referred to as waiver. Waiver is present in all state juvenile systems, but the requirements for its use differ. Some states allow waiver of children of any age, but most require the child to be older than thirteen years at the time of the commission of the offense to qualify for waiver. Most states also allow waiver only for more serious offenses.

In most states a delinquency proceeding may be initiated for any violation of the criminal code. Instead of being charged with a crime, however, the child is accused of committing a delinquent act. The child has a constitutional right to an attorney to represent him or her in the delinquency proceeding. However, there is no constitutional right to trial by jury in juvenile proceedings, so in most states the hearing on the delinquency petition is held before a juvenile court judge. Since the underlying philosophy of juvenile court is to help the child, a child convicted of a delinquent act may receive treatment rather than confinement in a secure facility. Typically, children who are released into the custody of their parents with a treatment plan are monitored by a juvenile court probation officer for compliance with the terms of the sentence. Children placed in secure facilities may also receive treatment. Many states have an upper age limit for children in the system, so a child found to have committed a serious delinquent act may only receive a year or two of confinement before he or she becomes too old for the system.

Felonies
Felonies are the most serious types of crimes under U.S. criminal law. A standard definition of a felony is any crime punishable by more than one year in prison or by death. This means that any crime that has a sentence of only a fine or confinement in the local jail is not a felony. In some cases, state codes may label a crime a "gross" or "aggravated" misdemeanor but provide for a sentence of more than one year in the state penitentiary system, thereby ensuring that the misdemeanor is treated as a felony in many respects.

If a crime is a felony, additional criminal procedures apply. The right to a court-appointed attorney in cases where the defendant cannot afford to hire a lawyer is usually triggered if the charge is a felony, but not for less-serious crimes. Likewise, whether a criminal defendant must be present in court for various parts of the process may depend on whether he or she is charged with a felony. In some jurisdictions, felonies can only be charged upon a grand jury indictment, while lesser crimes can be charged by written notice. Criminal defendants and witnesses can have their testimony disregarded in some jurisdictions by showing a prior conviction for a felony but not for a lesser crime.

In addition to differences in procedural criminal law, the substantive law can differ if a crime is designated a felony. Some statutes make an accidental death a murder if it occurs in the commission of a felony, but if it occurs in the commission of a lesser crime, it is only manslaughter. Burglary is defined under the common law as breaking and entering a house for the purpose of committing a felony; if the purpose was not to commit a felony, the crime cannot be charged as burglary. The crime of conspiracy may carry a harsher penalty if the offense is conspiracy to commit a felony rather than conspiracy to commit a misdemeanor. Justifiable homicide is sometimes described as a killing to prevent the commission of a felony, although in many jurisdictions it is limited to prevention of certain of the most serious felonies.

A person convicted of a felony may have more restrictions on their rights than a person convicted of a lesser crime. In many jurisdictions, felons cannot serve on juries. Often times they lose their right to vote or to practice certain professions, such as being a lawyer or a teacher. Felons may be prohibited from owning guns or serving in the military. Some states have a "three strikes, you're out" statute which provides that a person who already has been convicted of two felonies may be sentenced to life in prison if he or she is convicted of a third felony.

Examples of some felonies are assault in the first degree or assault that causes serious bodily injury, all degrees of murder, rape or sexual abuse in the first degree, grand theft, kidnapping, embezzlement of large amounts of money, serious drug crimes, and racketeering.
 

Quiz: Do I Have The Right to an Attorney?
Anyone who has ever watched a police drama on television, or has gone to a police movie at the theaters, has heard the infamous line "you have the right to an attorney." And in fact people suspected of a crime are often entitled to an attorney. However, that right does not always exist. The following quiz may help answer the question of when you are entitled to have an attorney present.

Q: Jake is stopped by the police while driving his car. The officer tells him that he is going to write him a speeding ticket and Jake says, "Wait a minute! I want a lawyer!" Does he have a right to an attorney at that point?
A: No. Jake does not have a right to an attorney when he is receiving a speeding ticket. Speeding, while against the law, is considered a moving violation. Jake cannot request an attorney to defend him at this stage. Of course, he can protest the ticket and can pay to have an attorney represent him through that process if he wishes.

Q: Bonnie has been suspected of murdering her husband. She has been arrested and brought to the police station where she has been placed in an interrogation room and handcuffed to the table. The police have started to ask her a number of different questions about her whereabouts on the night of her husband's death and have asked her if she in fact murdered him. Does she have the right to have an attorney present?
A: Yes. Bonnie has been arrested for murder, and she is in police custody and under questioning for the crime. She is in a situation where she is not free to leave, or walk out on the questioning. If she asks for an attorney, she must be allowed to contact one and the questioning must stop until her attorney is present.

Q: Lee is shopping in a grocery store when he is approached by the police. They start to ask him questions about whether he has just left the scene of a car accident in which another motorist was killed. Does Lee have the right to an attorney?
A: Not immediately. Lee, like Bonnie, is being questioned about a crime. However, he is not being confined. He can walk away from the police at any time and can refuse to answer any more questions. If the police place him under arrest, or if they place him in a confined situation, he would be entitled to have an attorney to represent him.

Q: Miguel is brought in for questioning by the police about a string of robberies in his town. He asks to speak to an attorney, and is allowed to contact one. The attorney is present for the remainder of the questioning. After his attorney leaves, Miguel is placed in a holding cell where he waits for five hours. The police then bring him back into the interrogation room and start asking him more questions. Miguel asks for his attorney to return, and the police tell him, "Sorry, you already had your chance with your attorney." Is Miguel entitled to have his attorney present at this second questioning?
A: Yes. Miguel has a right to have his attorney present at any time that he is being questioned. It is not a "one-shot" deal as the police have told him. All people in police custody who are under suspicion of a crime are entitled to have an attorney present any time that they are being questioned by the police.

Q: Jim is traveling in a foreign country and has been arrested for using illegal drugs. Does he have the right to an attorney?
A: It depends on the laws of that country. In some foreign countries, criminal suspects, or those persons placed under arrest, have the right to an attorney much as they would in the United States. In other countries, they may not have that same right. Jim's status as a U.S. citizen will not necessarily protect him. If possible, he should attempt to contact the U.S. Embassy or the U.S. Consular Officer in that country. While a Consular Officer cannot act as his attorney, he or she will be able to help him contact an attorney or his family in the United States.

Q: Al is a homeless man living on the streets of a large U.S. city. He is arrested one day for killing another homeless person. He has confessed to the crime and is being held in jail because he cannot afford bail. He cannot afford an attorney either. Is he entitled to one?
A: Yes. People have the right to an attorney, even if they cannot afford one. In this situation, the state will appoint a public defender to represent Al in his criminal trial. Even though Al has already confessed to the crime, he is still entitled to an attorney.

Q: Martina is a millionaire who has been arrested on suspicion of kidnapping her child, who normally lives with her ex-husband. The police have told her that the only attorney she may have is a public defender. Is Martina entitled to her own attorney?
A: Yes Martina can afford to pay for her own attorney, and she has requested her own attorney. In this type of situation, the police cannot force her to accept the services of the public defender.

Q: Justin has been arrested for making terrorist threats against the U.S. government. He wants to represent himself, but there is a valid concern that he is not sane. Does he have to have an attorney?
A: No. Justin can be allowed to represent himself. Attorneys or other legal assistants cannot be forced upon anyone. When defendants may not appreciate the charges that have been brought against them, or where they may not be able to adequately defend themselves due to their diminished mental capacities, the court may appoint an attorney to act as their legal advisor.

Drug Violations
The medical value of narcotics has been known since ancient times. Nearly all cultures have used drugs to treat illnesses or as part of religious rituals. When hypodermic needles were introduced in the mid-1800s, patients were originally encouraged to buy and treat themselves with a variety of powerful drugs. However, society's view of drug use changed and the first narcotics laws began to appear in the early 1900s. In 1970, the federal government passed the Drug Abuse Prevention and Control Act that codified federal drug law into a uniform system. The act classifies drugs into five categories, listed in schedules, and establishes regulatory requirements and penalties for the misuse of the drugs on each schedule. The act also allows the United States Attorney General to add drugs to the schedules, if necessary.

The most severe restrictions and penalties involve Schedule I and II drugs. Schedule I drugs are those with a high potential for abuse, an absence of any medical use, and are dangerous to the user even under medical supervision. The most well known of these drugs are GHB, heroin, LSD, mescaline, marijuana, and peyote. Schedule II drugs have a high potential for abuse, a high potential for severe psychological or physical dependency, but a currently accepted medical use. Schedule II drugs include opium, cocaine, methadone, amphetamines, and methamphetamines. Schedule III drugs have less potential for abuse than Schedule II drugs, a potential for oderate psychological or physical dependency, and an accepted medical use. Schedule III drugs include anabolic steroids, amphetamine and any product containing
methamphetamine, codeine, and nalorphine, which is used to detect narcotic use. Schedule IV drugs have less potential for abuse than Schedule III drugs, have a limited potential for dependency, and are accepted in medical treatment. These drugs include tranquilizers, meprobamate, chloral hydrate, most drugs that cause sleep, and sedatives. Schedule V drugs, which have a low potential for abuse, limited dependency, and accepted medical uses, include drugs with small amounts of codeine or other narcotics in them.

Drug offenses range from simple possession, to participation in an ongoing criminal enterprise, to manufacture and distribution of drugs. Simple possession requires that the offender knowingly and intentionally possess a scheduled drug without a valid prescription. The government must prove the offender knew the drug was a controlled substance and had either actual possession of it, or other control over it, either alone or with another. The federal sentencing guidelines, which are now advisory, suggest a maximum of one year in prison for a first-time offender, a maximum of two years in prison for a second-time offender, and a maximum of three years in prison for a third-time or higher offender. In addition, the Guidelines propose that a sentence for possession of more than five grams of crack cocaine is increased to a minimum of five years in prison, even for first offenders. There may also be a fine imposed.

Manufacturing, delivering, or possessing with intent to deliver a controlled substance is a crime with escalating penalties depending on the drug involved, the quantity of the drug and the offender's prior record. For example, a first offender convicted of possessing with intent to deliver 100 grams to five kilograms of heroin may receive a minimum sentence of five years in prison and up to forty years. Three crimes, distributing controlled substances to persons under twenty-one years of age, distributing controlled substances near a school, and using persons under age eighteen to violate drug laws, are penalty-enhancement crimes for which the sentence can double or triple what it would otherwise be for distributing that particular amount and type of drug. The offense of continuing criminal enterprise is charged when the defendant commits a felony drug violation as part of a continuing enterprise with five or more individuals from which substantial income is obtained. Its penalty can be twenty years to life in prison, or even the death penalty if the offender intentionally kills another.

Most states have drug laws that mirror the federal act. However, the penalties may be less harsh and more flexible under state sentencing schemes than under the federal sentencing guidelines. A conviction of simple possession, for example may receive a sentence of drug treatment rather than jail time, and probation may be available to first-time offenders for even the more serious crimes.

The Juvenile Justice System
Before social reformers made it their mission in the early twentieth century to differentiate between juvenile offenders and adult criminals, anyone over the age of 7 who was convicted of a crime was punished as an adult. Many argued that this policy was much more effective in preparing children for a life crime than it was in preventing children from re-offending. After tireless efforts on the part of child advocates and reformers, those in power came to agree and a new system of juvenile justice focused on education and rehabilitation rather than punishment was born.

Each state has its own juvenile justice system. While there are differences between the states, a general rule of thumb is that a minor between the ages of 7 and 18 will be under the jurisdiction of juvenile court. Most scholars believe that children under the age of 7 cannot possess the criminal intent necessary to be responsible for committing a crime.

Judicial Waiver
All states have a mechanism by which a minor can be tried in adult criminal court, otherwise known as judicial waiver. In most states, a waiver occurs when a juvenile court judge decides that a minor, due to the severity of a crime or the minor's criminal history, should not be afforded the protection of the juvenile system. Over half the states have ruled that certain crimes — such as first-degree murder — must be tried in adult criminal court.

Procedural Basics
Once police officers have taken a minor into custody, they will refer the case to the juvenile system. An intake officer then evaluates whether or not formal charges should be pressed. In many jurisdictions, the intake officer has discretion as to how the violation should be handled and can choose an informal reprimand, counseling, compensation for property damage or community service.

If an intake officer feels that formal charges are necessary, then the minor might be detained in a juvenile correction facility or an alternative facility, such as a group home or a foster home. The child then has an arraignment where a juvenile court judge presents him or her with the charges. Most cases will then remain in juvenile court, where the minor will either enter a plea agreement or face adjudication (the equivalent of a bench trial in criminal court). If a judge decides that a minor is delinquent — in other words, guilty — then the judge decides on the appropriate disposition (or sentence).

Constitutional Rights of Minors
The Supreme court case In Re Gault established that juveniles, like adults in a criminal proceeding, had the right to counsel, the right to confront witnesses and the right against self-incrimination. Law enforcement must now give minors the Miranda warnings and provide the opportunity to have a parent present during an interrogation.

Status Offenses
Certain types activities are only offenses if they are committed by juveniles. For example, skipping school, consumption of alcohol and curfew violations are lawful for anyone over the age of 18 — or 21, in the case of alcohol consumption — but legally prohibited to children. Most jurisdictions have granted authority to prosecutors to “divert” these types of offenses to other agencies before a formal petition is filed, under the assumption that these offenses are relatively minor and a child should not be “put in the system” until he or she is seriously endangering himself or others.

Juvenile Records
Juvenile court records are sealed and are not open to viewing by the public. Juvenile records can also be expunged after the minor turns eighteen, provided he or she has met certain conditions. As with any criminal proceeding, finding an attorney who specializes in juvenile justice is crucial for families who find themselves navigating their way through the system.

Contact The Terry Law Firm today at 253-852-6100 (King County), 253-299-6800 (Pierce County), 253-839-1290 (Federal Way), for all of your Kent, WA criminal defense needs.