Criminal Law FAQ's
What's the difference between a felony and a misdemeanor?
Most states break their crimes into two major groups-felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor. In some states, certain crimes, called "wobblers," may be considered either a misdemeanor or a felony, because under some conditions the punishment may be imprisonment for less than a year, and in other situations, the criminal may go to prison for a year or more.
Behaviors punishable only by fine are usually not considered crimes at all, but infractions-for example, traffic tickets. But a legislature may on occasion punish behavior only by fine and still provide that it is a misdemeanor -- such as possession of less than an ounce of marijuana for personal use in California.
What is the "presumption of innocence?"
All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.
The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put people behind bars.
Youth and Violence Facts
- Guns killed 4,205 children under the age of nineteen in 1997-that's nearly twelve children each day. Of that number, 2,562 were victims of murder, 1,262 died by suicide, and 306 were victims of accidental shootings.
- The number of children killed with guns increased substantially between 1987 and 1993, whereas the numbers of other types of homicide remained constant. Between 1980 and 1997, 75 percent of all children age twelve and over who were murdered were killed with a firearm.
- Children ages twelve to seventeen are twice as likely as adults to be victims of violent crime and three times as likely to be victims of simple assault.
- Although the total number of multiple-victim school homicides has increased in recent years, the total number of school-associated violent deaths has actually decreased. A student has a less than one in 1,000,000 chance of becoming a victim of a school-associated homicide.
- A recent survey indicated that the number of high school students bringing weapons to school has declined. Sadly, however, nearly 10 percent still reported having carried a gun on school property during the previous month.
- The peak hours for violent youth crime are between 3:00 and 7:00 p.m. After school programs can serve not only to keep kids out of trouble, but also to keep law-abiding youngsters safe.
- Violent juvenile crime arrest rates have actually declined by 19 percent since 1994.
- Despite this decrease, children are increasingly being tried as adults and confined in adult jails and prisons. A recent study indicated as much as a 35 percent increase in the confinement of juveniles in adult detention centers.
- Children detained in adult jails and prisons rather than juvenile facilities are at eight times more likely to commit suicide, five times more likely to be sexually assaulted, two times more likely to be assaulted by staff, and 50 percent more likely to be attacked with a weapon.
- Although minorities make up only about one-third of the youth population, they account for about two-thirds of the juveniles committed to public facilities. Studies have shown that black youths are about twice as likely as white youths to be detained for the same offense, and that they are detained an average of two weeks longer than white youths for the same offenses.
Handling False Allegations of Child Abuse
As public awareness of child abuse increases, more and more reports of possible abuse are being made. Conscientious reporters are taking the necessary first steps to protect children. Not all reports of abuse are substantiated, however. Sometimes, even when the reports are made in good faith, further investigation reveals that the accusations are not true. In yet other situations, false allegations are intentionally raised in order to harm the subject of the allegations, such as in a bitter divorce in which custody of the children is contested. If you find yourself the victim of false allegations, whether from a well-meaning source or an embittered spouse or ex-spouse, you need to take immediate counter-action. The following tips, together with expert legal counsel, can head you in the right direction.
Do attempt to prevent the possibility of false allegations by avoiding being with children without another adult present. Day care workers, scout leaders, coaches, and others who could be the target of false allegations can lessen the likelihood of those charges sticking by having another adult present who can corroborate that nothing inappropriate happened.
Do attempt to resolve custody disputes amicably in order to avoid the possibility of an angry spouse or former spouse using false allegations as a means of punishment or obtaining custody.
Do avoid engaging in any conduct that could be deemed inappropriate when dealing with children, such as making sexually suggestive comments, telling dirty jokes, rough-housing, or engaging in overly aggressive horseplay.
Do hire an experienced attorney if someone levies false allegations against you. Even if you trust that the truth will prevail, or that the accuser will calm down and retract the accusations, it is imperative that you consult with an attorney who knows the legal issues and system involved and can safeguard your interests.
Do educate yourself about the subject of false allegations of child abuse so that you have a greater understanding of the situation, can protect yourself, and can work as a partner with your attorney.
Do contact your attorney with questions and concerns, and keep him or her apprised of developments in your situation.
Do contact friends, neighbors, co-workers, and family members who may be willing to testify on your behalf, either by written affidavit or in court.
Do maintain your positive relationships with your children when the allegations arise out of a custody dispute, and understand that the children are not responsible for the false allegations and resulting turmoil. Even if they say the words that support the allegations, understand that false accusations can be planted in children's minds through no fault of their own.
Do appreciate that allegations of child abuse must be taken seriously and investigated. Even though you know that in your case the accusations are groundless, in many cases they are not, so in the interests of all children further investigation is generally necessary.
Don't abuse your children, or any others, physically, emotionally, or sexually.
Don't put yourself in any unnecessary situations that could give rise to suspicion, such as by accompanying children to the bathroom, helping them change clothes, or bathing them. If your job requires such activities, it is always best if another adult is present during all circumstances that could be wrongly interpreted.
Don't be passive if false accusations are raised. Take immediate action to protect yourself.
Don't be afraid to ask your attorney questions before retaining him or her, and as your case progresses.
Don't admit to anything you did not do, even if may seem simpler to do so. A conviction for child abuse has long-lasting, far-reaching implications, and can have an adverse effect on future employment, future relationships, and your future in general.
Don't lose your temper with the authorities involved in your case. As angry as the situation may make you, losing control could be used as evidence to support the allegations.
Don't give up. It may be the ugliest battle of your life, but overcoming and disproving false allegations of child abuse is without a doubt worth the effort.
Answers to Common Questions About DUI/DWI
Although it may have many names, including driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), drunk driving, and drunken driving, operating a car after using or while using alcohol and drugs is a serious matter. As the name varies, so do the laws in each state concerning DUI/DWI (which is how it will be referred to in this application). However, there is one constant: it can cause serious injuries or death, and it is against the law. Following are answers to some common questions that arise in DUI/DWI situations.
Is DUI/DWI really a big problem, or is it all just hype?
DUI/DWI is a very, very 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 had the awful luck of being in the wrong place at a time when someone chose to drive a car while impaired. It is not all hype, or a big deal created by party-poopers and wimps. DUI/DWI is very dangerous, both for those individuals who chose to operate a car under the influence, and those individuals who they hurt or kill. In addition to the severe physical injuries that may result in a DUI/DWI accident, there are also serious emotional and mental scars that may never fully heal for both the offenders and the victims.
Is it "safer" to drink beer, wine or hard liquor in excess?
None of them. 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, a 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 "less" hard liquor and wine 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 having. 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.
However, drinking any alcoholic beverage to excess is never a good idea. Not only may you seriously injure yourself or others if you decide to operate a car after drinking excessively, you may also suffer other physical injuries, whether or not you decide to operate a motor vehicle. Excessive alcohol consumption can cause damage to the kidneys, liver, heart, and brain. In addition, excessive use of alcohol within a short period of time can lead to death.
What is a blood alcohol content?
A 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 that calculates the ratio of ethanol to blood within your system. Therefore, if you have a BAC of .15, that really means that 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 dangerous machinery), you have broken the law.
If your BAC or BAL is below .10, that does not mean that you are necessarily capable of operating a car. Every person's ability to tolerate alcohol is different. You may still be charged with DUI/DWI if your BAC or BAL is under .10 if you have exhibited other signs that you are unable to safely operate a car.
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 and inhale. 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 in the state you are in at the time. 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 can 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 dangerous equipment, including motor vehicles. Check the labels on all medications carefully. Don't 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?
Again, what will happen to you depends upon what state you are in. 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 revocation of a license and the loss of driving privileges for life. In addition, 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 or lawsuits.
Are "alternative" penalties okay for DUI/DWI?
In many cases "alternative" penalties are allowed in DUI/DWI cases. A judge hearing your case may have what is called 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 leeway, but in first time offenses, or in less serious matters, a judge may be able to require you to perform community service in the nature of 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 a good idea to retain one if you have been placed under arrest, or charged with DUI/DWI, particularly if you have seriously injured or killed another person. DUI/DWI laws are strictly enforced. While there may be some arguments that you can make in your defense, or mistakes that were made by the police, your chance of successfully making those arguments or finding those mistakes is much greater if you have an attorney assisting you sooner, rather than later. Invoke your right to remain silent, and ask to speak to an attorney. If you are faced a DUI/DWI charge, an attorney may be your only hope for avoiding or reducing any penalties or imprisonment you face.