How an appeal in a criminal case is filed

There is a tendency in the United States court system to uphold decisions made by lower courts. As a result, for an appellate court to hear an appeal, a person must demonstrate that there were errors made at the trial level. The error also must be material or substantial in nature. “Harmless” errors that have not had a substantial impact on the outcome of a case are almost always unable to form the basis for a successful criminal appeal. You can create a strong criminal appeal with the assistance of an experienced criminal defense attorney. Continue reading to learn how to file an appeal in a criminal case.

COMMON BASIS FOR SUCCESSFUL CRIMINAL APPEALS

There are several common reasons for successful criminal appeals, which include:

Abuse of discretion. In some types of criminal cases, judges have a wide range of discretion. If an appellate court determines that a judge abused discretion in making a decision, this means that the ultimate ruling was either erroneous or arbitrary in nature.

Ineffective assistance of counsel. Ineffective assistance of counsel means that a person’s Sixth Amendment rights were violated. In deciding an ineffective assistance of counsel case, courts determine whether a lawyer’s conduct undermined the judicial process.

Insufficient weight of evidence. Appellate courts tend to not view how evidence was presented in court or review an argument. As a result, appellate courts are often not in the best situation to assess the weight of evidence. It is possible, however, for an appellate court to decide that a lower court improperly weighed evidence in arriving at a decision.

Plain error. Any defect or error that affects a person’s rights can represent a plain error. Some of these errors can represent the basis of a successful criminal appeal. One of the most common types of plain error is when a judge miscalculates sentences following a conviction.

HOW TO FILE AN APPEAL IN A CRIMINAL CASE SUCCESSFULLY

Some of the steps that are commonly involved in successful criminal appeals include:

• A person retains the services of an experienced criminal appeals attorney.
• Notice of the appeal is filed with the appropriate trial court.
• Records of the appeal are obtained. An experienced attorney will then perform a thorough review of all of the documents and transcripts associated with the appeal to identify any potential legal errors.
• The appeal attorney prepares and files the appropriate brief. The brief will include details about what occurred in a person’s case as well as present arguments supporting a person’s appeal. The outcome of a large number of appeals relies on the details of a brief.
• You and an experienced lawyer will argue in front of the judges who will decide the outcome of your appeal. During the appeal, a person often will have the option to appear. During this time, judges will listen to each side’s argument, consider the merits of each argument, and issue a written decision that provides either an affirmation or reversal of a conviction.

SPEAK WITH AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY

It can be challenging to make a successful criminal appeal, but the assistance of an experienced criminal defense attorney can help greatly.

The Nuances Of Adolescent Criminality

The justice system in this country is designed to separate juvenile offenders from adult criminals. Young offenders are jailed and tried in a different court system than adults who have broken the law. While most jailed adolescents are released back into the public by the time they turn 21, if not sooner, most parents want to keep their children out of the justice system altogether. When they set out to protect their children from committing crimes, parents are encouraged to remember the impact of their children’s offenses and how these acts can impact their future, as well as that of the entire family.

Disruption Of The Family

Many young people do not have the maturity or the forethought to remember that their actions impact more lives than their own. Parents, however, do have this level of forethought and therefore are encouraged to do everything they can to educate their children about the far-reaching consequences of even the most seemingly harmless acts.

For example, a teen who steals another kid’s cell phone does not just put himself or herself at risk of being thrown out of school and arrested. If that young offender is arrested, they disrupt their family’s life and home. Parents should always try to remind their children that every action can greatly impact their present lives.

Interruption Of Their Education

Young offenders also take for granted how their actions can impact their education. They may not realize that even minor crimes can interrupt their current educational pursuits. Kids need to be reminded that if they commit a crime and are arrested, the justice system will more than likely require that they are withdrawn from their present school and placed in a correctional facility. Their education will continue while they are in jail; however, these young offenders will no longer be around their friends, no longer enjoy extracurricular activities and no longer be able to participate in sports. They sacrifice the best parts of their educational experiences when young people commit crimes.

Guiding Kids Away From Crime

Parents are not helpless when it comes to steering their children away from crime. Even if they work two jobs and have extremely busy lives, parents can lead their children toward a happy future by knowing about every aspect of their children’s lives. They should know who their kids’ friends are, where they spend time when they are not at school, what kind of music and TV they watch, monitor their time on the computer, and be vigilant for signs of criminal activity inside and outside their home.

Parents can also lead by example by refusing to affiliate with others who engage in criminal behaviors and by enforcing the rules in their homes. Having strict boundaries, researching online about teens and criminal behavior at sites, and following through on punishments can be a great way for parents to show children that all of their actions have consequences and that the adults in their lives only want the best for them.

Teenage crime can be a complex matter that impacts every aspect of a family’s life. Parents can guide their kids toward a life of happiness and productivity by imparting these lessons early and by remaining vigilant about what goes on inside and outside their homes.

Facts About DUI Lawyers: Blood Alcohol Content Limit and Penalties for DUI

Drunk driving is an offense that many people get tangled with due to not knowing the alcohol limit in certain jurisdictions. Driving under the influence or DUI is an act of driving a motor vehicle where the driver’s ability is impaired due to alcohol consumption. Their blood alcohol level might have exceeded the legal limit mandated by state laws. Drivers who are below 21 years old have a lower legal limit. State limits range from 0.00 to 0.02. People facing charges can work with a DUI lawyer to help them navigate the process.

Drunk driving can be referred to as driving while intoxicated or impaired (DWI) or driving under the influence (DUI). Other terms for the criminal offense could be operating while impaired (OWI) or vehicle under the influence of alcohol (OVI).

The Bureau of Justice Statistics stated that there are an estimated 1.5 million drunk driving arrests that were made in the United States in 1996. It is a prevalent case running across all states for many decades. 29.1 million have admitted to having driven under the influence of alcohol in 2012. 1997 estimates showed that there were 513,200 offenders of the DUI crime and were placed under correctional supervision.

DUI CONSEQUENCES

People who were arrested for drinking and going out to drive while under the influence of alcohol have committed a serious crime and need a DUI lawyer to represent them. Driving a vehicle with some alcohol in a person’s systems has its own designations depending on the state that a person is in. Any offense related to drunk driving is treated as a serious crime and should not be taken lightly.

It must be noted that DUI-type offenses apply to any motorized vehicle and even non-motorized bicycles. It includes mopeds, lawnmowers, and motorized watercraft. Individuals who use skateboards or rollerblades will not be charged with a DUI if they were stopped and were intoxicated. However, they can still be charged with public intoxication, which can depend on the jurisdiction where the incident occurred.

The determination on whether a person is within the legal alcohol limits cannot be simply indicated through field sobriety tests. Nevertheless, the person’s blood alcohol concentration or BAC can be measured through a breathalyzer, urine or blood analysis. These measures are used to clearly determine if a person is able to meet the standard level of legal intoxication.

In the US, the universally accepted BAC would be at 0.08 based on the federal standards that can determine the legal intoxication. Some jurisdictions may have their own variations. Individuals with a BAC starting from 0.08 or more have very little defense when going into the court and defending their sobriety. They might have a chance if they work with an experienced DUI lawyer who can question the method in which the BAC was measured. A person’s BAC is a definitive standard that can determine an individual’s intoxication. If a person passes all field sobriety tests but fails the BAC, they will still be subjected to arrest.

There are jurisdictions where a person tested lower than the limit of their BAC level yet they can still be charged with DUI offenses on their behavior. The manner of driving or being involved in an accident with a certain alcohol level in their BAC is at risk of being arrested for DUI. This measure is done due to some state officials and judges who consider that any alcohol level within a person’s system has the potential to impair their judgment and ultimately, their driving ability.

STATE BAC’S DIFFERENCES

An individual who is within a state or simply visiting a jurisdiction must know the legal BACs. According to Benari Law, Pennsylvania has a three-tier Blood Alcohol Content system. Tier 1 is called the general impairment which is at 0.08. Tier 2 is at 0.10 while Tier 3 is at 0.13. This three-tier system is used in all states. The 0.08 level is used on all tier 1 systems for the entire United States. The differences of the state would be on tier 2 and tier 3 with some small .01 differences in BAC levels.

DUI offenses are not limited to alcohol use. People operating vehicles or motor-run units who are under the influence of drugs, both controlled and over-the-counter types of drugs can be arrested within the same offense.

WHY WOULD A DUI DEFENDANT NEED A LAWYER?

As previously mentioned, DUI is a serious offense. If arrested, an individual will spend time in jail. The arresting officers have the authority to remove a person from the road. This would mean that the individual will be brought to the police station, go through the booking process, and place the person in jail until a bond has been posted. A DUI lawyer is needed to look into the method of BAC testing and help the client use legal grounds for his or her defense.

What To Do In The Event Of A Traffic Accident

Being involved in a traffic accident can be one of the most stressful events you’ll ever experience, and whether it was your fault or not, you need to be aware of your legal rights as well as knowing what to do both at the scene of the accident and afterwards.

After all, depending on the circumstances, you could be subject to motoring prosecution for careless or dangerous driving, for example, and you may need to make a personal injury claim for compensation.

Either way, here are a few basic tips to make sure you do everything by the book.

At The Scene

The first thing you need to do after a road accident has occurred is – quite obviously – stop. Even if you weren’t directly involved in the incident yourself, if you saw what happened you could end up being a key witness. Your next priority is then to check if anyone has been injured and call for the necessary emergency services – an ambulance for people needing urgent medical attention, and also the police if the road has become blocked or if anyone has fled the scene.

You’ll then need to start gathering information: exchange details (name, address, phone number, vehicle information, insurance information etc) with every driver involved in the accident, as well as gathering the same details (minus insurance info) from any witnesses. It will also be incredibly useful to write down as many details of the accident as possible (note them on a phone or in a notebook if you carry one in your car). This can include the time of the accident, the weather and road conditions, exact location (including street names), damage to the vehicles and information concerning skid marks. It can also be very helpful to make a sketch of the scene of the accident or take photos if you have a camera or camera phone with you. Any type of evidence will come in handy later for insurance claims or if judicial action is required.

After The Initial Accident

You’ll obviously need to inform your insurance company if any damage was inflicted on your or someone else’s vehicle, and if the police ask for a valid insurance certificate (this can also be requested by other people involved in the accident), one must be produced either immediately or taken to a local police station within seven days of the accident. It is worth noting that if the police suspect a crime has been committed, they can check the insurance information of a certain car or driver using a database, and can seize the vehicle if it is being driven while uninsured.

Seeking Professional Help

Of course, this is just a very brief look at your rights and what you should do in the event of an accident. For more information concerning road traffic law – or if you want to proceed with legal action due to a road accident – a specialist solicitor will be able to help you, whether you are the victim of someone else’s dangerous driving or if you were involved in an accident where you were at fault. A firm that has experience in road traffic law will be able to impart their knowledge on this legal area and give you professional advice on what to do next.

Selecting A Skilled Appellate Lawyer

It is often a good idea to ask your trial lawyer if he or she has any recommendations for who might be able to provide strong appellate assistance. You might also ask your friends if they can refer an attorney who can provide strong assistance in navigating an appeal. A recommendation, however, should not be enough to satisfy your search for an appellate attorney. Instead, it is critical to ask a number of questions about the skills of a potential appellate attorney. Some of the factors to consider include how long the appellate attorney has been practicing and the degree to which the attorney focuses on criminal appeals.

In addition, it’s important to look at an attorney’s track record of success in handling criminal appeals. The appellate process is extremely complicated and requires a different set of skills than representing a defendant at trial. When you talk to a lawyer that you are considering retaining for your appeal, you should ask about his or her law school experience, whether he or she has practiced in the United States Courts of Appeals, and whether he or she has obtained favorable court decisions in the past.

There is a substantial variety in the appellate skills of lawyers. Because a small number of criminal appeals are successful, it is vital to obtain the assistance of the best criminal appeals lawyer possible. While a good appellate lawyer can increase the chances that your case resolves in a positive manner, a less than stellar appellate lawyer can negatively impact the future of your case.

The Exclusionary Rule Exceptions

Pre-Sentence Report

The exclusionary rule states that illegally-obtained evidence and statements obtained through an illegal interrogation, in violation of the Fourth, Fifth, or Sixth Amendment of the United States Constitution, are inadmissible at the criminal trial of a person whose rights were violated. In basic terms, the illegally obtained evidence cannot be used against the defendant. The rule applies to criminal cases and not civil cases. In order for this rule to be invoked, the violation must have been of the defendant’s rights and not someone else’s. However, like any other rule, exceptions do apply. If an exception is met, then the evidence will be admitted into the case.

The Constitutional Basis of the Exclusionary Rule

Application of the exclusionary rule is based on several United States Constitutional amendments, which include the following:

• The Fourth Amendment, which acknowledges a person’s right to privacy from unreasonable searches and seizures
• The Fifth Amendment, which protects individuals against self-compelled incrimination
• The Sixth Amendment, which recognizes a person’s right to counsel in a criminal proceeding as well as a person’s right to confront his or her accuser

The History of the Exclusionary Rule

The 1914 case of Weeks v. United States was a landmark case that laid down the basis for the exclusionary rule. The case involves Fremont Weeks, who was believed to have transported lottery tickets through the mail in violation of the Criminal Code. In response, law enforcement arrested Weeks and searched his office. Based on this evidence, Weeks was convicted. During a subsequent appeal, Weeks argued that the court had violated his Fourth Amendment right to be protected from illegal searches and seizures. In its subsequent decision, the Supreme Court of the United States ruled that the search and seizure of Weeks’ home violated his Fourth Amendment rights. In its majority opinion, the court held that the illegally seized evidence constituted “fruit from the poisonous tree.” 

In 1949, the Supreme Court held another landmark exclusionary rule case: Wolf v. United States. The petitioner in this case was convicted by a state court of conspiring to commit illegal abortions. The petitioner appealed and argued that his Fourth Amendment constitutional right to be free from illegal searches and seizures was violated and that any evidence used against him violated the Fourth Amendment. The Supreme Court of the United States subsequently held that due process is not denied when evidence obtained through an illegal search and seizure is admitted by a state court for a state offense.   

As a result of Weeks and Wolf, forms of the exclusionary rule existed in several states for many decades. In 1961, however, the rule was extended throughout the country and gained popularity among criminal defendants as a potential defense. 

That is because in 1961, the United States Supreme Court heard the case of Mapp v. Ohio. This case arose from the decision of Ohio law enforcement to enter Mapp’s home without her approval. Instead, law enforcement was acting on a tip that a bomb was located inside of Mapp’s residence. While law enforcement did not find a bomb, pornographic material that had been left by a prior tenant was seized. Consequently, Mapp was arrested because possession of pornography was a crime in Ohio then. Following a conviction, Mapp argued on appeal that the warrant was fake and that law enforcement’s decision to enter the home without justification violated Mapp’s constitutional right. The Supreme Court ruled in favor of Mapp. 

Exceptions to the Exclusionary Rule

• Inevitable discovery rule: This includes evidence that would have been inevitably discovered through lawful means. It is similar to the independent source doctrine. 
• Independent source doctrine: This applies to evidence initially discovered during, or as a consequence of, an illegal search, but that same evidence was later obtained independently from activities untainted by the initial illegality. This is because if the illegal activity by police had not occurred, the evidence would still be admitted in court.
• Knock and announce: This rule states that when an officer is executing a search warrant, he or she generally must not forcefully enter a residence, but instead first knock, identify him or herself and the intent, and wait a reasonable amount of time for the resident to answer. The exclusionary rule may apply to some violations of the rule, but not all, and therefore the applicability is determined on a case by case basis. As a result, evidence gathered following a knock and announce violation is not always excluded.
• Attenuation principal: Admission of evidence may be permitted if the connection between the evidence and the illegal means by which it was obtained is remote and attenuated.
• Good faith exception: This applies to officers who had a reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective. This exception does not apply if:

                   No reasonable officer would rely on the affidavit underlying the warrant;
                    The warrant is defective on its face;
                    The warrant was obtained by fraud;
                    The magistrate judge “wholly abandoned his judicial role;” or
                    The warrant was improperly executed

• Isolated police negligence: This will not necessarily trigger the exclusionary rule. To trigger this rule, police conduct must be deliberate, reckless, or grossly negligent. For example, if law enforcement were to conduct a search without a warrant and knowing that no warrant exceptions applied, a strong defense could likely be raised.
• In court identification: A witness may make an in-court identification despite the existence of prior illegality. This is because the information stems from the witness and not just the illegal gathering of evidence.

Speak with an Experienced Criminal Defense Lawyer

If you have been convicted of a crime and believe that the exclusionary rule applies to your case, in order to prevent evidence from being used against you. An experienced Criminal Defense Lawyer will analyze your case, and if evidence was illegally obtained, the lawyer will work to exclude it from your case.

How does the criminal trial process work?

Understanding the criminal trial process

No matter if you are facing charges for a misdemeanor or felony, one of the first questions that you might ask is, “What can I expect from the criminal trial process?” Many people find the criminal trial process confusing and even scary. It is helpful to have a good understanding of the criminal trial process if you are charged with a crime so that you can to prepare for what is ahead of you. The following will review the common elements of a criminal trial. If you are facing criminal charges, it is a wise idea to obtain the assistance of an experienced criminal defense attorney.

Arrest

An arrest occurs when a law enforcement officer either witnesses a person commit an offense or has an arrest warrant supported by probable cause. After an arrest, a person will be taken into custody by law enforcement. An individual will then appear before a judge, which often occurs within 24 hours after the arrest.

Initial Appearance

An initial appearance occurs when a person appears in front of a judge for the first time. During this encounter, a judge will read the charges against a person and explain some of that individual’s basic rights. The judge will decide whether the individual should remain in jail or should be released on bond. During the initial appearance, the judge will also schedule a preliminary hearing.

Preliminary Hearing

During a preliminary hearing, a judge will determine whether there is probable cause that an individual committed the charged offense. A criminal defense attorney will also cross-examine any witnesses presented by the prosecution. Sometimes, the prosecution might present a grand jury to show that there is a sufficient level of probable cause.

Arraignment

The arraignment process involves an individual’s decision to plead either guilty, not guilty, no contest, or another special type of response like an Alford plea. During the arraignment process, the judge will review the bail amount and set the next court date.

Trial

If a person decides to plead not guilty, the case will proceed to trial. The trial will occur in front of a judge and/or jury. At trial, you have the constitutional right to decide if you want to testify. The prosecution will also present witnesses as well as introduce evidence that shows you committed the offense in question. Your criminal defense attorney will respond by challenging the testimony and evidence presented by the prosecution. At the conclusion of a trial, a judge or jury will reevaluate the evidence and decide whether the prosecution established that you satisfied each element of the charged offense.

Sentencing

Within 30 days of pleading guilty or being found guilty, a judge in a court of law will conduct a sentencing hearing. The judge during this time will determine the punishment that the convicted individual will face.

Top Strategies for DUI Defense: How to Protect Your Rights and Your Future

If you are facing DUI charges, it's important to understand your legal rights and to develop a strong defense strategy. DUI charges can have serious consequences, including fines, license suspension, and even imprisonment. Here are some top strategies for DUI defense:

1. Challenge the Traffic Stop: In order to make a DUI arrest, the police must have a valid reason for stopping your vehicle. If you can show that the traffic stop was unlawful or that the police did not have reasonable suspicion to stop you, you may be able to have the charges against you dismissed.
2. Challenge the Breathalyzer Test: Breathalyzer tests are commonly used in DUI cases to measure blood alcohol content (BAC). However, these tests can be unreliable and subject to error. If you can show that the breathalyzer test was improperly administered or that there were issues with the calibration of the equipment, you may be able to have the results of the test suppressed or dismissed.
3. Challenge the Field Sobriety Tests: Field sobriety tests are physical tests that police officers use to determine whether a driver is under the influence of alcohol. These tests are often subjective and can be challenged in court. If you can show that the officer did not properly administer the test or that there were other factors that could have affected your performance, you may be able to challenge the results of the test.
4. Negotiate a Plea Deal: In some cases, it may be possible to negotiate a plea deal with the prosecutor. This may involve pleading guilty to a lesser offense in exchange for a reduced sentence or other concessions. While a plea deal may not be the best option in every case, it can be a useful tool in certain situations.
5. Prepare for Trial: If your case goes to trial, it's important to be well-prepared. This means working closely with your DUI defense attorney to develop a trial strategy, including selecting a jury, preparing witnesses, and presenting evidence. By taking a strategic and proactive approach to trial preparation, you can increase your chances of a positive outcome.

Ultimately, the key to a successful DUI defense is to work closely with an experienced DUI defense attorney who understands the legal system and can help you navigate the complexities of your case. By taking a proactive and strategic approach, you can protect your rights and your future and increase your chances of achieving a favorable outcome.

Understanding the Science Behind DWI Testing: How to Challenge Your DWI Charges

If you have been charged with DWI (driving while intoxicated), you may be wondering how you can defend yourself against these serious charges. One of the most important things you can do is to understand the science behind DWI testing and how it can be challenged in court. Here are some key points to consider:

1. Breathalyzer Tests: One of the most common forms of DWI testing is the breathalyzer test, which measures the amount of alcohol in your breath. However, there are many factors that can affect the accuracy of these tests, including the calibration of the equipment, the conditions under which the test was administered, and even the presence of certain medical conditions or substances that can affect breath alcohol content.
2. Blood Tests: Another common form of DWI testing is the blood test, which measures the amount of alcohol in your bloodstream. While blood tests are generally considered more accurate than breath tests, they are not infallible. Factors such as the collection and handling of the blood sample, the qualifications of the lab technicians who analyze the sample, and the presence of other substances in the blood can all affect the accuracy of the results.
3. Field Sobriety Tests: In addition to breath and blood tests, police officers may also administer field sobriety tests, which are designed to measure your coordination and balance. However, these tests are subjective and rely on the officer's judgment, which means they can be challenged in court.
4. Expert Witnesses: If you are facing DWI charges, it may be helpful to enlist the services of an expert witness who can testify on your behalf. This may include a forensic toxicologist, who can challenge the accuracy of the testing methods used, or a medical expert, who can testify to any medical conditions that may have affected the results.
5. Challenging the Evidence: Ultimately, the key to successfully defending against DWI charges is to challenge the evidence against you. This may involve identifying flaws or inconsistencies in the testing methods used, questioning the qualifications of the personnel involved, or presenting alternative explanations for your behavior or the results of the testing.

If you are facing DWI charges, it is important to work with an experienced attorney who understands the science behind DWI testing and can help you build a strong defense. By taking a strategic and informed approach, you can increase your chances of achieving a favorable outcome in your case.

What to Expect After a DUI Arrest

 Being arrested for DUI can be a stressful and overwhelming experience. After the arrest, there are several steps you will need to take to navigate the legal system and protect your rights. Here's what you can expect after a DUI arrest:

• License Suspension: Your driver's license will likely be suspended, either immediately or after a hearing. You may be able to obtain a temporary license, but you will need to request it.
• Court Appearances: You will need to attend court appearances to address the charges against you. It is important to hire an experienced DUI attorney to represent you.
• Possible Jail Time: Depending on the circumstances of your arrest, you may face jail time if you are convicted of DUI. Your attorney can help you understand the potential consequences of your charges.
• Alcohol Education or Treatment: In some cases, you may be required to attend an alcohol education or treatment program as part of your sentence.

If you have been arrested for DUI, it is important to seek legal guidance right away to protect your rights and minimize the impact of the charges. An experienced DUI attorney can guide you through the process and help you achieve the best possible outcome.

What Happens If You Plead Not Guilty?

What To Consider When You Plead Not Guilty

When a person decides to plead not guilty, he or she is informing the prosecution that a case will proceed to trial and involve much more complex decisions. Even after choosing to plead not guilty, it is common to feel uncertain about what will occur in your case. The following will examine what will likely happen after entering a not guilty plea and shed some light on the trial process.

The Steps Following A Not Guilty Plea

Once you have chosen to plead not guilty, your case will likely follow some critical steps:

• Trial date. A case will be assigned a pretrial or trial date following a not guilty plea. In some cases, a case might still be dropped even after a date is established.
• Type of trial. It is important to remember that a person can face either a bench trial or a jury trial. During a bench trial, your case will be heard by a judge rather than a jury. A defendant is often able to choose the type of trial he or she wants. There are advantages and disadvantages to both types of trials, which is why it is often a wise idea to discuss both options with an experienced attorney.
• Pretrial Motions. If a pretrial hearing is scheduled, the prosecution and defense will meet on the scheduled day to make arguments before a judge about the evidence and testimonies involved in a case. During pretrial motions, it is also possible to present a motion to dismiss.
• Jury Selection. If a defendant selects a jury trial, the jury selection process will likely be the next step.
• Trial. During a trial, the prosecution will be required to establish that the defendant is guilty beyond a reasonable doubt. To establish that someone is innocent of the involved crime, an attorney might cross-examine the officer who arrested him or her or demonstrate other evidence that establishes that the defendant is innocent. Trials are complicated and often long, and it can be a difficult decision to proceed to trial. Fortunately, an experienced attorney can help you determine if a trial is the best option for your case.

While the process following a not guilty plea can be complex, an experienced attorney understands this process and can help make sure that your case resolves in the best possible manner.

Reasons To Appeal A Criminal Case

Receiving a criminal conviction is not always the end of the road. While it might seem like it is, a criminal conviction often begins the process of deciding how to create a successful appeal, which involves questioning a court’s legal basis for making a decision. There are a number of ways in which an appeal can be used to show that an error in judgment was made. Short of the most obvious factual errors, appellate courts rarely view the facts associated with a case to determine if any factual errors were made. Continue reading to learn about the various reasons to appeal a criminal case.

8 Reasons To Appeal A Criminal Case

The purpose of this article is to discuss some of the most common reasons to appeal a criminal case. To create a successful appeal, a lower court’s errors must be material in nature or of such a degree that the errors affect the outcome of a person’s case. 

False Arrest

If a person was falsely arrested for an offense, there is a strong legal defense to a conviction on which an appeal can be based. False arrest is found to occur when law enforcement arrests an individual without probable cause for a warrant or when an arrest does not fall into one of the many warrant exceptions. 

Incorrect Jury Instructions

At the end of all criminal trials in which a jury is involved, a judge will provide jury instructions that describe the manner in which jurors are to handle the applicable law as applied to the case being heard. 

While many judges are able to skillfully handle jury instructions, this is not always what happens. When a judge fails to inform a jury about how the law should be applied or fails to include all of the law applicable laws for a verdict, an appeal can likely be created. 

Improper Use Of Evidence

Prior to nearly every criminal trial, a hearing occurs, at which time it is decided what evidence will be allowed in a trial. While the prosecution and defense will have different arguments about what evidence should be let in, these matters are ultimately resolved by a judge. 

In some cases, however, judges make improper decisions regarding the use of evidence and either exclude proper evidence or allow improper evidence to be used. In these situations, it is possible to bring the error of how evidence was handled upon appeal. An appellate court will then be tasked with reviewing the evidence in a case and making a decision about whether the lower court committed a legal error in handling the evidence.  

Even if it is decided that it was an error for a judge to allow evidence into trial, an appellate court must then decide whether the error was substantial enough to affect the outcome of the case.

Lack Of Adequate Evidence

To convict a person of a criminal offense, the prosecution must establish that a person committed each element of the offense beyond a reasonable doubt. If a person is convicted of a criminal offense as a result of insufficient evidence, it is possible to create a strong appeal. 

In many situations where a person was convicted of an offense based on inadequate evidence, this is an indicator that a jury made a decision to conviction as a result of either emotions or prejudice. 

While errors in handling evidence are known to occur, these appeals are frequently difficult to obtain. Often, these appeals are only possible to obtain if it can be demonstrated that the weight of the evidence in a case did not support a guilty verdict and that another factor led to a court’s decision.

Juror Misconduct

Being a juror is not a responsibility to be taken lightly. Instead, jurors must observe a number of rules designed to make sure that they reach an impartial decision. 

Unfortunately, juror misconduct is known to occur. If it can be demonstrated that a juror acted inappropriately in reaching a decision to convict, this can form the basis for a strong appeal. 

Unlike some of the other reasons for criminal appeals, juror misconduct appeals are fairly common. Some of the most common examples of how jurors can act inappropriately include inappropriate communication between jurors and witnesses or attorneys. 

Sentencing Errors

The sentencing phase is frequently complex and can result in sentencing errors. The type and number of offenses, as well as previous criminal convictions, impact the way in which a person is sentenced. Based on the offense involved, there are also a number of unique rules that judges must follow during the sentencing phase. 

Unfortunately, errors handling all of this information are known to occur and can lead to robust appellate strategies.

Ineffective Assistance Of Counsel

In accordance with the law in the United States, every individual has the right to counsel. There is also a right to counsel who will provide effective representation. When reviewing cases, appellate courts have traditionally allowed attorneys to have great discretion in the strategies that they decide to employ during a trial. 

A defendant must demonstrate that a lawyer’s conduct prejudiced a person to the degree that it affected the outcome of a case. Some of the most common examples of ineffective representation by counsel include failure to introduce adequate evidence or failure to motion for a mistrial while misconduct by jurors or the prosecution was occurring. 

Unethical Acts By The Prosecution

Unethical acts by the prosecution can result in the grounds for a strong appeal. Similar to other appellate grounds, a person must demonstrate that unethical acts by the prosecution were to such a degree that they influenced the outcome of a case. 

Most commonly, this misconduct includes prosecutors who made inappropriate comments during the trial or who intentionally misstated the law. In response to the unethical behavior of this nature by the prosecutor, judges will often attempt to cure the situation by instructing the jury to disregard comments that were made by the prosecution. 

What happens if you plead not guilty?

 

WHAT TO CONSIDER WHEN YOU PLEAD NOT GUILTY

When a person decides to plead not guilty, he or she is informing the prosecution that a case will proceed to trial and involve much more complex decisions. Even after choosing to plead not guilty, it is common to feel uncertain about what will occur in your case. The following will examine what will likely happen after entering a not guilty plea and shed some light on the trial process.

THE STEPS FOLLOWING A NOT GUILTY PLEA

Once you have chosen to plead not guilty, your case will likely follow some critical steps:

• Trial date. A case will be assigned a pretrial or trial date following a not guilty plea. In some cases, a case might still be dropped even after a date is established.
• Type of trial. It is important to remember that a person can face either a bench trial or a jury trial. During a bench trial, your case will be heard by a judge rather than a jury. A defendant is often able to choose the type of trial he or she wants. There are advantages and disadvantages to both types of trials, which is why it is often a wise idea to discuss both options with an experienced attorney.
• Pretrial Motions. If a pretrial hearing is scheduled, the prosecution and defense will meet on the scheduled day to make arguments before a judge about the evidence and testimonies involved in a case. During pretrial motions, it is also possible to present a motion to dismiss.
• Jury Selection. If a defendant selects a jury trial, the jury selection process will likely be the next step.
• Trial. During a trial, the prosecution will be required to establish that the defendant is guilty beyond a reasonable doubt. To establish that someone is innocent of the involved crime, an attorney might cross-examine the officer who arrested him or her or demonstrate other evidence that establishes that the defendant is innocent. Trials are complicated and often long, and it can be a difficult decision to proceed to trial. Fortunately, an experienced attorney can help you determine if a trial is the best option for your case.

While the process following a not guilty plea can be complex, an experienced attorney understands this process and can help make sure that your case resolves in the best possible manner.

SPEAK WITH AN EXPERIENCED CRIMINAL DEFENSE LAWYER

Deciding what to plead following a case depends on the exact circumstances of your case. While it might be advantageous to plead not guilty in one case, in another case, this might not be a wise idea. It is critical to remember that every criminal case in unique, which is why it is best to obtain the assistance of an experienced criminal defense attorney. 

Possible Defenses To A Disorderly Conduct Charge

(US criminal law and generally) Disorderly conduct is the most common charge made by arresting officers throughout the country. This charge has a very broad range of events that fall under its scope. Playing music too loud at your home to having a fight with your partner that others can hear can be considered disorderly conduct. Showing a firearm in public, making obscene gestures that others are witness too, and being intoxicated in a public place are some other examples. 

Because the ranges of events that qualify under disorderly conduct are so vast, so are the possible defenses. Criminal defense attorney in Austin advises that one must take into consideration every aspect of the offense to create a good defense to put before the court. Following are several defenses which have proved successful in court:

• Mental State (Non-Medical) – One of the best defenses for a disorderly conduct charge is to show that the mental state of the charged person was that of someone who did not know their actions were causing a disturbance. An example would be someone charged for having a loud party at their home could plead that they did not know their neighbor three houses away could hear their music.

• Mental State (Medical) – A person that has been charged for being loud and disruptive and is being treated for any type of mental illness can use this medical condition to their advantage. A person that is suffering with depression and then creates a public display can show that their mental state was the cause of the action.

• Witness Testimony – Sometimes, a person is charged with disruptive behavior based on the testimony of one person. However, when others are interviewed about the event, the evidence shows that the event was not seen as a disruption by any other people involved. When this is the case, the accused often sees their case dismissed.

• Intoxication – If alcohol or drugs are involved, the defense attorney can show that the accused is not fully responsible for their actions due to a substance abuse problem. In many cases jail time and fines are waived if the accused enters into a treatment plan for these problems.

• Police Work – In some cases, shoddy police work will be the best line of defense for the accused. If the arresting officer violated the rights of the accused, the defense lawyer can use this evidence to have the case dismissed. This may include shoddy reporting, violations of Miranda, and violations of search and seizure laws concerning evidence.

Disorderly conduct charges are, in most cases, a felony misdemeanor charge that carries a fine and possibly imprisonment of up to six months. In most cases the courts are satisfied with monetary punishment. However, the accused will still have a criminal record if they are found guilty, and this can impact their lives more dramatically than a fine. If you have been accused of or charged with disorderly conduct, it is in your best interest to seek legal counsel to protect your rights and your reputation.

A Basic Guide to Criminal Procedure

The criminal justice system is an integral part of society. The potential of becoming the victim of a crime or accused of a crime is significant. Yet many people are unfamiliar with how the criminal process works. In brief, the criminal process is a series of steps for determining whether a crime was committed, a review of the facts of the crime, a determination of whether to take the case to trial, and the trial itself. The following is an elaboration of these steps:

Criminal Complaint

The filing of a complaint is the initial documentation that alerts law enforcement or the court system of potential criminal activity. The criminal complaint is often initiated by a citizen calling the police to report that a crime has occurred. The officer that arrives to the scene will document pertinent information. This report may later be used by prosecutors and the courts, who may then issue a criminal complaint, charging a person with a specific offense.

The criminal complaint contains facts and probable cause for the charge. A criminal complaint may not be filed if it is determined that there is insufficient evidence to bring charges. Also, it may be that the situation is a civil matter, rather than a criminal matter. Should this be the case, a civil complaint may be made by a civil court.

Preliminary Hearing

After the criminal complaint has been filed, the prosecutor presents the case to a judge. The judge will determine if there is enough evidence to proceed with a trail. If the prosecutor is unable to demonstrate that there is enough evidence to charge a person with a specific crime, the prosecutor could pursue lesser but related charges, if there is enough evidence for a lesser charge.

Arraignment

After the criminal complaint has been issued, an arraignment hearing takes place. It is at this time the person accused of a crime appears in court for a hearing. The judge will read the charges, and the accused, or defendant, will enter a plea of guilt or innocence. A third option is to plead no contest, which means that the defendant does not admit to the charges, nor does the defendant contest the charges. The arraignment needs to be held 72 hours after the defendant has been charged. If the arraignment is not held within this time, the defense has cause to request that the case be dismissed.

Pre-Trial Conference

The pre-trial conference is a meeting between the prosecutor, defense attorney, and the judge to determine how the trail will proceed. It is during this time that the details of the case are presented. The attorneys for both sides will make motions as to what evidence will be allowed and who can testify. This is the stage of the criminal process that determines how the trial will proceed.

The Trial

The trial is the final step of the process where the attorneys for the defense and the state argue their case before a judge or jury. The defense will present evidence to demonstrate the innocence of the defendant, while the prosecutor will present evidence to demonstrate the guilt of the defendant. The prosecution has the burden of doubt, meaning that the prosecutor must prove beyond a reasonable doubt that the defendant is guilty. The defense needs to present evidence that raises doubt as to the defendant’s guilt.

Is Driving Tired Comparable to Driving Drunk?

 As frenzied and demanding as our lives are, it’s no wonder that 30 percent of adults only get 6 hours or less of sleep each night. Unfortunately, that’s just not enough sleep for many people, and the result is exhaustion and fatigue. In an effort to keep up with life’s pace, tired drivers head to work and other activities, creating a danger for themselves and others who are sharing the road. Shockingly, driving while drowsy has been shown to affect our bodies in ways comparable to drunk driving.

Drunk Driving Similarities The National Highway Traffic Safety Administration (NHTSA) estimates that 1 out of every 6 car accidents occurs as a result of a tired driver. The reason for this is that when people are sleep-deprived, our bodies function in a way similar to how they would function if we were intoxicated. After about 18 hours of being awake, our cognitive skills are similar to someone with a blood alcohol content of .05%, and after 24 hours without sleep, we are impaired as if we had a BAC of .10%. Here are a few specific ways in which driving while tired mimics drunk driving behavior:

• Slower reaction time

• Less attentive

• Decreases overall performance and vigilance

• Increases aggressive behavior

• Impedes decision making ability

• Impairs vision

As dangerous as it is to drive while drowsy, it does get worse. Just as some people become so intoxicated that they pass out, other people get so tired behind the wheel that they actually fall asleep.

Falling Asleep at the Wheel According to a study released by the Center for Disease Control (CDC), 1 out of every 25 drivers reported falling asleep at the wheel within the preceding thirty day period. Of course, that number only represents people who are actually aware that this has happened. Those figures don’t include microsleep, which occurs when someone falls asleep for a moment, but isn’t aware of it. The number in that case would likely be much higher. Regardless of how long someone is asleep at the wheel, this can be a deadly scenario that should be avoided altogether.

Preventive Measures The good news is that preventing the danger is simple. Just like someone who has been drinking alcohol avoids an accident by handing their keys to a designated driver, a drowsy driver can, and should, do the same thing. There are other things that can be done to avoid drowsy driving, especially when planning a road trip, or for those who have a long daily commute. Here’s an abbreviated list, courtesy of AAA.

• Travel with others and take turns driving

• Regularly get at least 7 hours of sleep

• Take a break, or change drivers, every two hours or 100 miles

• Avoid eating heavy foods that may make you tired

• Avoid taking medications that cause drowsiness (including “non-drowsy” antihistamines)

• If possible, only drive during the times of day when you are usually awake

Driving while drowsy is attributed to as many as 30,000 injury accidents and 6,000 fatal car accidents a year. So, if you find that you missed your exit off the freeway, are drifting from lane to lane, or blinking and yawning frequently, take a few minutes and pull over. Those are indicators that you may be driving while drowsy. Remember, while you may be driving sober, that doesn’t mean that you’re driving safely.

Effects a DUI Can Have on Your License

 (US criminal law) Being convicted of a DUI comes with many consequences, but one of the most overlooked is the effect a DUI conviction can have on your driver’s license. From the loss of driving privileges to points being added onto your license and more, being convicted of a DUI can truly wreak havoc on your ability to enjoy your vehicle for life.

Loss of Your Driver’s License

One of the most common penalties for DUI is the loss of a driver’s license for a predetermined period of time. In most states, even before you are convicted, your driver’s license can be temporarily suspended pending your trial. If convicted in court, you may then lose your driving privileges for a period of months or even years, depending upon the circumstances surrounding your case. If you have been convicted of multiple DUIs within a specified time period, some states may even revoke your driving privileges for life.

Points Added onto Your Driver’s License

Like virtually all other traffic infractions, a DUI could mean points being added onto your driver’s license. Most states have a points system in place for driving offenses, and once a driver receives too many points on their license due to traffic violations, they may face penalties, including the suspension of their driving privileges. Having too many points on your license can also affect your insurance premium costs and other vehicle-related expenses.

Lifelong Labeling

In most cases, a DUI conviction will also mean that you will have to have a special mark or notation placed on your driver’s license that denotes your prior DUI offense or offenses. This mark may be on the front or back of your license, and in virtually all cases, it will stay there for life. Having this label on your license is meant to identify you easily to law enforcement, but it may also bring great shame and embarrassment when you need to provide your license to others.

If You’ve Been Arrested

As a result of these harsh potential consequences, it’s important to protect yourself if you’ve been arrested and charged with a DUI, and one of the best ways to protect yourself in these cases is to partner with a criminal defense attorney. They are attorneys who specialize in DUI cases and will often have special knowledge as well as experience in investigating DUI-related arrests and criminal charges. Having this experience can mean the difference between being convicted and being found innocent. According to our car accident lawyer in Austin, a criminal defense attorney can examine all aspects of your case, including how your arrest was conducted, whether the testing equipment used against you was calibrated correctly and more.

Finally, it’s important to remember that you can avoid a DUI entirely simply by not drinking and driving. If you’re planning to go out and drink, always have a plan to get home safely. This may mean bringing along a designated driver, or it may mean using a taxi cab or public transportation. If you have been out drinking and you realize you’ve had too much to drive, call a friend or family member to come and pick you up. Whatever you do, don’t get behind the wheel. Remember, if you drink and drive, it may be the last time you drive your vehicle for a very long time.

FAMILY VIOLENCE

Many people do not fully understand the seriousness of a Texas domestic or family violence crime until it's much too late. Texas Family Violence is defined as the reckless infliction of pain on a family or household member, which can simply involve two people who live together or are dating. The charges are filed by the police department, not by the abused person. In fact, the victim has no control over the charges at all. The victim of a family violence charge does not decide what happens with the case and cannot "drop" the charges. Only the prosecutor can decide not to proceed with the case.

Simply based on the arrest, an emergency protective order (EPO) can be put into effect, which usually requires that you stay a certain distance from the alleged victim at all times. The EPO remains effective for 60 days for a misdemeanor assault and 90 days for a felony assault, prohibiting you from returning to your home if you live with the alleged victim. Matters can be further complicated if you work together or have children together. The victim can also apply for a protective order (PO), which can be granted for a period of up to two years.

These severe punishments are imposed even before a conviction, which is why it's so important that you contact the Law Office of Betty Blackwell in Austin, Texas. Your case will be assigned to County Court of Law #4, which has been designated as the Travis County domestic abuse court. As a skilled trial lawyer who is Board Certified in Criminal Law, Betty Blackwell has an extensive history with this court and can advise you about the best way to handle your family violence charge.

Betty Blackwell

EDUCATION

• B.A., Summa Cum Laude from Texas A&M University
• J.D. with Honors, The University of Texas Law School
• Board Certified in Criminal Law, Texas Board of Legal Specialization

PROFESSIONAL ACTIVITIES

• Appointed by State Bar President to Commission on Lawyer Discipline, 2005-2008
• Chairman of the Criminal Justice Section of the State Bar of Texas, 2001
• President of the Texas Criminal Defense Lawyers Association, 2001-2002
• Governor’s Appointee to rewrite the Code of Criminal Procedure, 1996
• Governor's Appointee to the Texas Punishment Standards Commission to rewrite the Penal Code, 1994
• Past Chairman of the Criminal Law & Procedure Section of the Travis County Bar
• Past President and Founding Member of the Austin Criminal Defense Lawyers Association
• Penal Code Committee of the State Bar of Texas
• Legislative Chairman for the Texas Criminal Defense Lawyers Association, 1991
• Voted Best Criminal Lawyer in Austin by the Austin Chronicle, 1994
• Voted Best Trial Lawyer in Austin by the Travis County Women Lawyers' Association, 1992
• Committee for Indigent Representations in Criminal Matters for the State Bar of Texas
• TCDLA Presidential Award of Merit, 1990, 1992, 1993, 1994
• Ambassador Award, Austin Criminal Defense Lawyers Association, 1994
• Super Lawyer by Texas Monthly and Texas Lawyer, 2003, 2004, 2005, 2007, 2008

LAW RELATED PUBLICATIONS

• Co-author with Judge Tom Blackwell and Judge Michael McCormick, Texas Practice Volume 7, 7A and 8, West Publishing Co.
• Author/speaker for the State Bar of Texas Advanced Criminal Law
• Author/speaker for Texas Criminal Defense Lawyers Association, Advanced Criminal Law Seminar, Legislative Update - 1993, 1994, 1996, 1997, 1998, 2001
• Former Adjunct Professor of Law, University of Texas, Criminal Defense Clinic, 1992

CONTACT US

If you have been arrested for drunk driving or Domestic Violence in Austin, Texas, you need a qualified Travis County Trial Lawyer able to bring years of experience to your case.

At the Austin, Texas Law Office of Betty Blackwell, anyone who has been charged with a criminal offense in Travis County can contact Betty to discuss your rights. Betty has been defending persons arrested in Austin for over 30 years, and is dedicated to helping you work through your case in an efficient, cost-effective manner.

There's no time to waste. For more information, please e-mail or call Betty Blackwell . She offers free initial consultations and flexible payment plans.

NOTE: The use of the Internet for communications with the firm will not establish an attorney-client relationship, and messages containing confidential or time-sensitive information should not be sent.