Being arrested and charged with a crime like a DUI, Partner Assault or drug possession can be confusing, stressful, and terrifying. Trying to navigate the court system where you are already accused of being a criminal is no place for someone without experience. Lawyers, Judges and Prosecutors work in this arena with/against each other every day; trying to address a criminal case by yourself after being accused is a terrible idea for multiple reasons. An experienced lawyer will help you understand the process, identify problems in the Government’s case and provide guidance and insights that will help you to make the best possible decisions. Can it be expensive: yes. But is almost always worth it.
But what if you don’t have a lawyer yet? Or what if a loved one is involved in a criminal case? How can you help? What can you do? Start by reading today’s post, where I’ll help you understand the process of court appearances and trials and what you can expect from start to finish.
After you’re arrested- you will either be released by posting bail or remain in jail if you cannot post bail. Bail is a financial guarantee by the Court that you will show up for court if released. There are uniform bail amounts for crimes, so your bail amount usually depends on the crimes you are charged with. Bail can be reduced, but usually only after a court hearing. Having an attorney advocate for you at such a court hearing is the best way to ensure you get a lowered bail, or the attorney convinces the judge to release you without posting any bail. Bail can be posted so you are released 2 different ways: 1. You pay cash for the full bail amount; and 2. A Bail bondsman. If you pay cash for the bail, you will be released and at the completion of the case, your bail amount will be returned to you via check from the Court. If you hire a bondsman, they usually require payment of around 10% of the total bail amount, but that is a fee you pay and never get back. After you are arrested, whether you are in jail or out of jail, you will be seen by a judge within two days. If you post bail, you are required to physically show up for Court- usually within a week or so. Your first court appearance is known as an arraignment or initial appearance. The presiding judge will read you your rights, as well as the maximum possible penalties for any and all criminal charges. You’ll then need to enter a guilty or not guilty plea.
This is not really the time to tell the judge about your case. The Judge only wants to hear a Guilty or Not Guilty plea, to get the process started. If you plead guilty – you will be sentenced right then and there- and the case will be over. You will have the opportunity to explain your situation to the judge and have him or her take your unique circumstances into consideration, but if you plead guilty with an explanation your case will not be dismissed. You are pleading guilty – don’t expect the judge to understand and then make your charges go away, that will not happen. The judge will impose a sentence and you usually cannot undo it. If you are sentenced to jail time – you will go directly to jail.
With few exceptions, pleading guilty at arraignment is a very bad idea. If you plead guilty, it is very rare to be able to undo that and plead not guilty later. Your case will be over and you will accept whatever punishment the judge gives you, with no opportunity to speak to the prosecutor, look at the evidence or negotiate a known plea outcome. If it is a DUI case, you probably won’t even know if the Government has a good or weak case at that point. Pleading guilty removes all of your rights and ensures you don’t have the opportunity to find out whether you could have had a better outcome or not. Our advice: Always Plead Not Guilty at Arraignment.
Pleading NOT guilty allows you to explore your options, review evidence with an experienced attorney and their experts and better understand your rights. Pleading not guilty does not mean you are telling the court you believe you are innocent. This is simply part of the criminal procedure. Pleading not guilty is the only legal way you can maintain your rights and allow the players in the criminal justice system to do their jobs and exercise your rights in the event law enforcement made an error or look for technicality issues in a case. You no longer have any rights after you plead guilty, so don’t do that.
Once you plead not guilty, the court will start the ball moving into what is known as a contested case; and your case will be assigned an actual cause number and judge. A prosecutor will be assigned to the case and that is how defense attorneys can communicate with the prosecution to obtain evidence and negotiate on your behalf. In most criminal cases you are entitled to a public defender if you cannot afford private counsel. If you are serious about trying to avoid being convicted, you need to think about this next step as an investment into the rest of your life. Consider: a public defender usually has hundreds of clients all wanting their attention. That can be difficult to spend significant amounts of time on one case to defend. A private defense attorney does cost money to handle your case. However, private defense attorneys are being paid to pay attention to your individual case and usually have the experience to find holes in the Government’s case that can lead to dropped charges and better outcomes. If you believe your case needs personal attention and you want to ensure you receive the absolute best defense possible: Invest in a defense.
At Arraignment- after pleading not guilty, the judge will then likely set certain conditions of bail. Bail will allow you to stay out of jail while your case is pending. When it comes to DUI and related charges, it is not unusual for the Court to order you to not drive, restricted travel, be subject to some type of daily alcohol monitoring and other restrictions. This can include a SCRAM ankle bracelet or some type of pre-trial probation where you must pass a breath test up to twice a day. Experienced attorneys can help you get off of these expensive and inconvenient monitoring conditions as quickly as possible. The Court will lastly set a date in the future to hold an Omnibus Hearing. Once that is all set, your Arraignment is over and you can leave the court.
The Omnibus Hearing or “OMNI” hearing is the second hearing after your initial appearance. This is a scheduling hearing where you and your attorney usually have to be present.
At the hearing the Prosecution will tell the court whether they have provided all the evidence to the defense. The Defense will tell the judge if any pretrial motions will be file and if so, briefing schedules are set.
The Omnibus hearing does not take very long, and the Defendant does not have to say anything, they must simply be present in most cases. Some courts allow us to file paperwork to replace the hearing, but not always. At the OMNI, the judge will also likely set the future court dates for a final pretrial hearing and the trial date at this hearing.
Final Pretrial & Trial Date
The Final Pretrial Hearing & Trial Date The final pretrial hearing is usually the deadline by which the Court wants to know if the parties have reached a plea agreement – or are going to trial. Some courts are firm on this deadline, and some are flexible. Typically, the Defendant and their attorney show up at this hearing and are prepared to confirm they are going to trial, or will ask the Court to accept an already negotiated plea agreement at that time. If you confirm a trial at the final pretrial hearing – your case is likely going to a trial. Many factors go into this decision that should be discussed extensively by the accused and their attorney. Once a trial date is set and confirmed, the case will go to trial.
A trial occurs if no plea agreement can be reached. A Defendant may have either a jury trial or a judge trial- also called a Bench Trial. In a Felony jury trial, 12 jurors (plus alternates) are selected and the Defense and Prosecution present their evidence for the case. In a Misdemeanor trial, only 6 jurors are used. In a judge trial, the decision of guilt or innocence is left to the presiding judge- this is rarely a good idea.
Trials can often take at least several days and are held in the actual courtrooms that are open to the public. After all evidence is presented, the judge or jury will consider the evidence and find the Defendant guilty or not guilty. A third possibility, known as a hung jury occurs in a jury trial when the jury is unable to reach guilty or not guilty verdic.
If found not guilty, the Defendant walks out of the court and the case is over.
If found guilty, the judge will set a sentencing hearing and the Defendant will be sentenced on the crimes found guilty of.
If a hung jury occurs, the Prosecution has the options of trying the case again, or simply letting the case go and not having another trial– in essence the Defendant’s charges are dismissed, but can be re-charged.
No lawyer can ever guarantee a positive outcome to any trial and the final decision is in the hands of the jury members or the presiding judge.
Change of Plea Hearing
A Change of Plea Hearing only occurs if the Prosecution and Defense have reached a plea agreement before trial.
This hearing happens before the trial date and usually has a deadline to have an agreement made, which means your attorney needs to be active on your case and not miss the deadline in which to come to a plea agreement. At this hearing, the Defendant will plead guilty to any crimes outlined in the negotiated plea agreement. In most misdemeanor cases the Defendant will change their plea and be sentenced at that same hearing. At the end of that hearing, the case will be completely over.
Once the Defendant is sentenced the case is over and the Defendant must comply with their sentence which may include jail time, fines, probation, or other conditions. In some cases, a Defendant will have to go to the probation office that day and provide a breath, urine, or blood test and begin other terms of the plea agreement.
In Felony cases, most judges hold a separate sentencing hearing on a later date after the change of plea hearing. So, for felonies there will be a Change of Plea Hearing, and then the Defendant will need to go to the Felony probation office (that same day) to complete paperwork for what is called a Pre Sentence Investigation or PSI to be completed before the sentencing hearing can take place.
A PSI is a document the office of probation prepares for the Judge to review for sentencing purposes. A PSI provides the judge with the entire background of the Defendant and helps the judge determine if probation is an appropriate sentence for the charges included in the plea agreement. There is a lengthy questionnaire that must be filled out by the defendant as well as an in person interview to complete the PSI. Your entire criminal history will be explored by the probation department and reviewed by the judge.
Often, a Defendant will be tested for alcohol or drugs after a change of plea hearing, so be prepared for that. It is not unusual for a dirty test at a change of plea hearing to result in the judge arresting you and letting you sit in jail pending the sentencing hearing. Free Advice: Do not violate bail conditions before any hearing.
The Sentencing Hearing for misdemeanor crimes usually happens at the same time they change their plea. However, in Felony cases a Sentencing Hearing is separate and usually takes place 1-2 months after a change of plea hearing. The reason for the delay is to prepare the PSI in felony cases.
The Sentencing Hearing is when the judge actually imposes a sentence. It is also considered the day a Defendant is actually “convicted” or your conviction date.
After the sentencing date the court does not have any further hearings and the Defendant is expected to complete their sentence. Usually after conviction you would only return to court if you violated rules of sentence and are revoked by the Court.
If probation is a condition of a sentence, the Defendant must be prepared to stay in the city that they are sentenced in, even if they live out of town. The Probation Department is the only agency that can allow travel at that point, and often they will not allow a Defendant to travel out of town until everything is checked out and they have met with the Defendant.
Defendants that live out of state must attempt to enter into an Interstate Compact agreement where they can transfer their probation out of state from Montana.
What Should You Do Now?
If you or someone you care about is facing criminal charges, the first thing you need to do is find a lawyer you can trust.
At the Judnich Law Office, we’ve been representing clients throughout all the various courts in Montana for over 20 years. We have the experience you need to help guide you through all of your court appearances, including a trial.
We’ll help you make the best decision to protect your important rights. We can help negotiate a plea agreement for DUI’s and other criminal charges, but we know that a trial may be necessary and are willing to go the distance for all of our clients.
If you’d like to know more, call us at (406) 721-3354 in Missoula or (406) 602-8700 in Bozeman or contact us to learn more.
Marty is a former criminal prosecutor in the Cascade County Attorney’s Office and now uses that experience to defend those accused of crimes. A University of Montana School of Law graduate, Marty focuses his practice on personal injury and criminal defense and is a premier DUI defense attorney. He is also well versed in the insurance claims industry and has negotiated significant settlements with nearly every major insurance company.