Typically, when an arrest warrant is sought by the Prosecuting Attorney’s Office on a felony charge, the application is sent to a Judge for him to sign a warrant for the arrest of the suspect. At the same time, the Judge routinely sets a bond which the defendant would have to post with the court in order to get out of jail.

Usually, that initial bond is a “cash only” bond, which means a bondsman cannot be used nor can property be put up. There are other types of bond other than cash, including a property bond or a surety bond.

When you hire a bondsman to post the bond, it is called a surety bond. Bondsmen typically charge 10% of the amount of the bond as their fee for posting the entire amount of the bond. You should retain the services of an attorney to request a change in the terms of the bond. if the original bond is “cash only”, an attorney can request that a surety bond or property bond be allowed to be posted or that the amount of the bond be reduced.

You should be aware that Missouri has a law which allows a Judge to grant a “10% cash bond”. This bond condition is usually not in the initial bond when it is set. Most Judges will wait until an attorney enters on behalf of the defendant and then will consider a motion filed by the attorney asking the Judge to authorize a 10% cash bond.

This type of bond allows the defendant, his family or friends to post 10% of the amount of the bond in cash in order to get the defendant released from jail. The defendant or the person posting the bond signs documents making them responsible for the entire amount of the bond but after only paying 10% of the bond.

Whether or not a Judge will grant your attorney’s motion to reduce the bond or to authorize a 10% cash bond depends on the position of the Prosecuting Attorney’s Office, the severity of the crime and the factors which the attorney can present to the Judge to put the defendant in the best possible light to the court.

When considering a bond condition amount and the terms, the Judge is legally obligated to consider two factors. First, the likelihood that the defendant will appear in court for his future court dates. Second, the safety of the community.

You have the constitutional right to remain silent. Use it.

You have the constitutional right to an attorney. Use it.

If you are questioned by a law enforcement officer, you should have the assistance of an attorney during that questioning. Most people do not realize that is you are not under arrest, the office does not even have the obligation to read you your Miranda rights which would inform you that you have the right to remain silent and to have an attorney present. It is only during a “custodial” interrogation that the officer is obligated to advise you of those rights.

In order to establish that the questioning was a “non-custodial” interrogation, the officer may do many of several things, including: asking you to follow him to the police station; questioning you at a neutral site; or advising you that you are free to leave at any time. Any of these procedures, and many more, would negate the obligation for the officer to advise you of your constitutional rights.

When being questioned by a police officer, you are at a distinct disadvantage. The officer has had hours of training in the methods of interrogation. You may assume that the more years of experience the officer has and the higher up he is in the chain of command, that the more training he has received in those skills. You are better off to remain silent in dealing with the officer than you are to lie to him. Lies can be investigated and uncovered and used against you as a presumption of guilt.

You should understand that the same is not true of the officer. Most people are surprised to find out that the officer is not constitutionally prohibited from lying to you. It is considered an acceptable interrogation practice for the officer to lie to the suspect. Promises of not filing charges, leniency, or “I won’t arrest you” do not obligate the officer to follow through on that promise.

Protect yourself by exercising your rights. Remain Silent! Request an Attorney! Do not answer the questions of the officer without having your attorney present.

Be smart! Your Founding Fathers had the foresight to give you the protections of the Bill of Rights. Use them!

The Missouri legislature used the phrase driving while
intoxicated (DWI) to define a person that “operates a motor vehicle while in an intoxicated or drugged condition.” A majority of the municipalities around St. Charles County have passed local ordinances that use the phrase driving while intoxicated.

Some of the confusion regarding the difference between a DWI and a DUI may be attributable to St. Louis City. Their ordinance states that it is a crime for a person to operate “a vehicle while under the influence of intoxicating liquor.” St. Louis City’s ordinance appears to have adopted the use of the phrase driving under the influence.

Both pieces of legislation clearly make it illegal to
operate a motor vehicle while intoxicated. The only significant difference in the two is that the St. Louis City Ordinance does not include any language about driving while in a drugged condition.

However, do not be fooled or mislead; it is still illegal to drive in St. Louis City under the influence of drugs, offenders will probably just be charged under the Missouri State Statute instead of the City’s ordinance.

Should you be stopped and charged with either a DUI or DWI, the first thing you need to do is call a knowledgeable attorney who specializes in DUI and DWI charges. Call Niedner Law Firm, in St. Charles, Warren County, Lincoln County or St. Louis County. They have the experience with DUI and DWI to help you through this time.

When you are arrested for driving while intoxicated (DWI) the Missouri Department of Revenue will generally take affirmative steps to suspend or revoke your driving privileges. The suspension/revocation process is completely separate from the DWI charge. Here’s what you can expect to occur with your drivers license.

If you refused a breathalyzer

When you are asked to take a breathalyzer or other chemical test, the police are required to read you the Missouri Implied Consent Law. The law requires the police officer to tell you your refusal to take the breathalyzer will result in a one (1) year suspension of your driver’s license. The DWI lawyers at Niedner, Bodeux, Carmichael, Huff, Lenox and Pashos, LLP are experienced at challenging the refusal to avoid the one (1) year suspension of their client’s driver’s license.

If you refused to take a breathalyzer or submit to other chemical testing, the police officer will issue you a 15 day permit to drive. It is extremely important to contact a DWI lawyer immediately because you only have 30 days from the date of your arrest to file a Petition for Review with the court. A Petition for Review is a civil lawsuit filed against the State of Missouri that contests the suspension/revocation of your driver’s license.

In most cases, once the Petition for Review is filed, you will receive a “Stay Order,” which is a court order preventing the Missouri Department of Revenue from suspending or revoking your license until you have a hearing on the issues raised by your DWI attorney.

Concerned about insurance after a DWI?

This might also be eye opening, but cases that involve the refusal to take a breathalyzer do NOT result in the requirement that you obtain SR-22 insurance. What is SR-22 insurance? SR-22 insurance is a type of high risk insurance that requires your insurance company to file proof of your financial responsibility with the State of Missouri. Usually, anyone who has their drivers license suspended or revoked has to obtain SR-22 insurance and maintain it for two years.

If you took a breathalyzer and failed….

If you fail a breathalyzer or other chemical testing and you want to keep your driver’s license you will have to request an administrative hearing from the Missouri Department of Revenue. These hearings can be highly contested because they are usually your word against the arresting officer and his police report. The following steps should provide you with a basic understanding of the process after failing a breathalyzer or other chemical testing:

1. You will be issued a 15 day permit to drive that acts as a full-blown license to drive after your arrest for Driving While Intoxicated (DWI).
2. Your St. Charles DWI lawyer only has 15 days from the date of arrest to start the legal process and request the administrative hearing.

If you choose to file for an Administrative Hearing (contesting the suspension/revocation of your driver’s license) a temporary driver’s license will be issued until your hearing date.

If you lose the hearing, or decide against requesting one, here’s what you can expect:

• You will lose your license for 30 days
• You are required to pay the State of Missouri a $45 License Reinstatement fee.
• You must take SATOP class (Substance Abuse Traffic Offender Program).
• After the 30 day suspension, a 60 day hardship license can be issued.
• You will be required to obtain SR-22 insurance.

We certainly do not condone drunk driving, but if you have received a DUI/DWI in St. Charles Country, St. Louis County, Lincoln County or Warren County, Missouri, it’s important to know how the process works, know the deadlines, and to also know the steps needed in order to get you to back on the right track. The lawyers at Niedner, Bodeux, Carmichael, Huff, Lenox and Pashos, L.L.P., are experienced DWI attorneys. If you have received a DWI, please call our office at 1.888.572.2192 or 636.949.9300 and make an appointment so we may address the specific facts of your case. If you prefer you may email us at jcarmichael@niednerlaw.com or ssimpson@niednerlaw.com.

Photo Attribution

How Much Can You Drink?

Based on a 150 lb. male drinker, it is estimated that 2 drinks for the first hour and a drink each hour thereafter can keep the drinker within the legal limit. Please keep in mind that alcohol reacts differently in each person and if you are in doubt, do not drive drunk. Call a taxi cab or find another ride home.

In Missouri a driver is presumed to be drunk if his or her Blood Alcohol Content (BAC) is equal or greater than .08.

What To Do If You Get Caught

If you make the decision to drive drunk and are stopped by the police there are a few things you should know.

1. You have Miranda Rights – Use them! You do have the right to remain silent! Stay silent! People think they can talk there way out of a DWI. They are wrong. It is the police officer’s job to arrest you and obtain evidence to use against you at trial.
2. Police Departments have a set of questions that are designed to extract information that will be used against you later. Even the simplest questions should not be answered. Your name, birth date and basic identifying information should be all that is given.
3. If you are arrested you will be asked to take a breathalyzer test or to submit to a blood or urine test. The law says that you have 20 minutes to contact a DUI Lawyer before having to take the breathalyzer test or giving a blood or urine sample. Use every minute of this allotted time! It is important that you speak with a skilled DWI attorney so you know and understand your rights.

If You Have Already Been Caught, Do This

1. Hire a good DWI lawyer fast! Don’t wait. A DWI arrest sets a very specific process into motion and you only have a limited number of days to protect your driving privileges.
2. The court process is the same for a majority of people charged with a DWI
   • The first court date is an arraignment:
     This where you pleading guilty or not guilty.
   • Then comes the investigation:
     We collect the facts of the case and review the evidence against you.
   • After all the investigation is complete we will help you weigh your options:
     Do you want to make DWI deal?
     Do you want to take your case to trial?

The decision to take your case to trial or to accept a plea bargain is a decision only you can make. However, we are experienced DWI lawyers in St. Charles, St. Louis, Warren and Lincoln Counties, Missouri. We can help you make an informed decision.

Please Do Not Drive Drunk

If you drink and drive, BE CAREFUL! Your safety and well-being is important. However, we realize, things happen and some people do drive drunk and subsequently get arrested for DWI. If you get caught drinking and driving, hire a good DWI lawyer who is experienced and knows the law.

The lawyers at Niedner, Bodeux, Carmichael, Huff, Lenox and Pashos, L.L.P., in St. Charles County Missouri, are experienced DWI attorneys. If you have received a DWI, please call our office at 1.888.572.2192 or 636.949.9300 and make an appointment so we may address the specific facts of your case. If you prefer, you may email us at JCarmichael@niednerlaw.com or SSimpson@niednerlaw.com.

Photo Attribution

http://www.flickr.com/photos/versageek/ / CC BY-SA 2.0
]]> http://www.niednerlaw.com/2010/02/dwi-criminal-aspect/feed/ 0 http://www.niednerlaw.com/2009/11/federal-rules-of-evidence/ http://www.niednerlaw.com/2009/11/federal-rules-of-evidence/#comments Wed, 18 Nov 2009 04:25:26 +0000 admin http://www.niedner.neofora.com/?p=16 Evidence

In a lawsuit, both the plaintiff (the party suing) and the defendant (the party being sued) introduce evidence during the trial. Evidence refers to something submitted to the court to prove or disprove the truth of a factual matter being considered by the court. A case is decided using the evidence made available to the court.

Purpose and Construction of Federal Rules of Evidence

The goals of the Federal Rules of Evidence are to ascertain the truth and provide just determinations of legal disputes. The Federal Rules are to be construed to assure fairness in the administration of justice, reduce expenses, and eliminate delay.

Admissibility of Evidence

The Federal Rules of Evidence are the rules by which courts determine what evidence is admissible at federal court proceedings. There are four types of evidence: real (for example, a written contract in a civil trial or a murder weapon in a criminal trial), demonstrative (such as exhibits, photographs, maps), documentary (public records or other writings), and testimonial (a witness’s testimony at trial). The Federal Rules control what evidence can be admitted at trial. Generally, all evidence that is relevant (tends to prove or disprove the factual matter at issue) is admissible at trial.

Witness Testimony

The Federal Rules specify the proper form of examining and cross-examining a witness. The rules also provide for the testimony of expert witnesses.

Evidentiary Privileges

The Federal Rules of Evidence cover matters such as evidentiary privileges. An evidentiary privilege provides that a confidential communication made by a person in a protected relationship (such as a client to an attorney or a husband to a wife) does not have to be revealed in a lawsuit.

Hearsay

As a general rule, a statement made by a person out of court, which is being repeated by another person in court to prove the truth of the statement, is hearsay and will not be admitted by the judge. Such statements are considered unreliable because they are secondhand. There are various exceptions to the general rule that hearsay evidence is not admissible. The following are some exceptions to the rule against hearsay: dying declarations, declarations against interest, business records, spontaneous statements, certain public records, and prior testimony from a trial or deposition.

Burden of Proof and Burden of Persuasion

Other key provisions of the Federal Rules cover which party has the burden of proof or burden of producing evidence on a particular matter. The rules also specify which party has the burden of persuading the court or jury.

]]> http://www.niednerlaw.com/2009/11/federal-rules-of-evidence/feed/ 0 http://www.niednerlaw.com/2009/11/federal-rules-of-criminal-procedure/ http://www.niednerlaw.com/2009/11/federal-rules-of-criminal-procedure/#comments Wed, 18 Nov 2009 04:23:46 +0000 admin http://www.niedner.neofora.com/?p=13 Congress Gives U.S. Supreme Court Authority to Adopt Court Rules

The U.S. Congress passed a law authorizing the Supreme Court of the United States to adopt rules of practice and procedure for federal court proceedings. Congress also created a body called the Judicial Conference of the United States to administer the federal courts. The Judicial Conference has authority to make recommendations to the Supreme Court for amendments or changes to the rules. Proposed amendments are published, and the general public is allowed to comment on the proposals. The Judicial Conference then submits final recommendations to the Supreme Court. By law, any rules or amendments adopted by the Supreme Court are subject to Congressional review. If Congress fails to take action on the rules within seven months, the rules or amendments automatically become law.

Adoption of Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure first took effect in 1946. They govern the practice and procedure in all criminal proceedings in the federal court system. The goal of the rules is to assure the just determination of all criminal proceedings. The rules specify that they are to be interpreted to afford simplicity in procedure and fairness in administration. The rules are intended to prevent unnecessary delay and expense. The Federal Rules of Criminal Procedure have been amended several times.

Procedural Rules Must Be Nonsubstantive

Rules of procedure may not reduce, enlarge, or modify any substantive right. A rule of procedure that amends or expands a substantive right is considered void.

Provisions of the Federal Rules of Criminal Procedure

The Federal Rules of Criminal Procedure cover preliminary proceedings in criminal matters, including the filing of criminal complaints, the issuance of arrest warrants, and the initial appearances before the magistrate judge. The rules also deal with indictments by the grand jury and arraignments, pleas, defenses, and pretrial discovery. The Federal Rules of Criminal Procedures specify where the trial should take place and provide for transfer of the case in certain circumstances. The rules also regulate the proceedings at trial and at sentencing. Post-trial motions, such as a motion for a new trial, and a motion to correct or reduce the sentence, are allowed after judgment.

Local Procedural Rules

Local federal courts have authority to adopt procedural rules that regulate their own criminal proceedings. However, any local court rule must be consistent with the Federal Rules of Criminal Procedure.

]]> http://www.niednerlaw.com/2009/11/federal-rules-of-criminal-procedure/feed/ 0