Cota & Zeiler APC

These are our most frequently asked questions about criminal law.
  • Should I talk to the police?
    If you called them because of an emergency, yes. But if they are investigating a crime and you are the suspect, no. First, you have the right to be left alone by police and they can't force you to talk to them. Second, giving a statement creates opportunities for the police to misunderstand. Cops are human. Often, they have already decided you are guilty and nothing you can say will help you. Worse, their belief in your guilt may cause them to pay attention only to things that hurt you and ignore or forget things that may be helpful. Last, police often make simple mistakes. But these mistakes and misunderstandings can cost you tens of thousands of dollars and years of your life to fix, if they can be fixed at all. Why take the risk? Back
  • The police say they want to hear my side of the story. Should I talk to them?
    If the police didn't believe your accuser, how likely is it that they would spend even more valuable time talking to you about it? The answer is, "not very." The best time for you to tell your side of the story is in court with a lawyer to help you. Nine times out of ten, in our experience, the police have no solid evidence and could not convince the prosecutor to file charges without the statement of the suspect. In other words, in 90 percent of cases the police rely on your own statements to begin a prosecution against you. You are far better off exercising your right to remain silent. Back
  • Can police lie when questioning me?
    The unfortunate truth is that police can and will lie to get you to make statements that hurt your case. Sometimes they will claim a friend or accomplice told them it was you. Other times, they may pretend that a stack of papers "proves" you are guilty when they really have no evidence against you at all. The lies are sometimes elaborate. We have seen police officers plant snitches in wired jail cells to ask what you did. We've even seen officers posing as civilians sit next to suspects before an official interrogation and advise them to "tell the officers what they want to hear and it will be easier on you." This is all nonsense. It isn't easier on you. It's easier on them, because instead of having to do real work to prove a case, they rely on the suspects own statements as the primary evidence against them.

    If police are investigating crime and you have any reason to think they suspect you, even if you are innocent, you should not talk to them. Back
  • If the "victim" calls and asks for an apology, are the cops behind it?
    Probably. It is a classic police tactic to have the victim of a crime call a suspect to talk about the offense "one on one" to get an apology or explanation. Police love to record these calls because they are usually full of admissions, and even when they aren't, since in the face of an accusation is damning. This tactic is especially common in sexual assaults, in which the victim calls the suspect and asks them to explain why they did what they did. Variations on this theme might include text messages and internet chat logs, all of which will be forwarded to the prosecutor to be used as evidence. Back
  • The cops offered me a deal if I snitch. Should I trust them?
    It depends. Most police officers are honest and will keep their word. But some cops can't or won't. Even when the officer is honest, it is possible to get cheated. Some confidential informants are strung along forever while the police keep insisting that they just need "one more" tip or favor. These deals may never reach an end, leaving you living in fear of prosecution forever. An experienced attorney can negotiate with the police and prosecutors to reach a square deal that includes exactly the benefits you hope to receive and spells out exactly how much you must do to live up to your end of the bargain. Back
  • When must police read me my rights?
    Police are generally required to advise you of your rights before any "custodial interrogation." Whether an interrogation is "custodial" has been the subject of many court cases and usually depends on a lot of facts particular to each individual case. In other words, there is no hard and fast rule as to when a person is in custody. Your best policy is not to talk to the police at all if they attempt an interrogation, but to identify yourself and ask for a lawyer. Keep asking for a lawyer until they provide you with one. Back
  • What happens if police don't read me my rights?
    The answer depends on whether police are required to read you your rights in the first place. During conversations that occur with your consent, or when you are not in "custody," there is no requirement for them to read you your rights. All of your statements will be used against you, and any evidence located as a result of your statements will also be used. If police fail to give you an effective advisement of your rights when required, the evidence they obtain may not be admitted into evidence against you. There is no rule, however, that a case must be dismissed. Because this area of law is technical and develops quickly, it is best for you to consult with an experienced criminal defense attorney before you make any statements to police. Back
  • I was arrested for DUI, but police didn't read me my rights!
    Police generally do not have to read you your rights except before any "custodial interrogation." But police investigating DUI offenses almost always obtain incriminating statements before making a decision to put you in custody. Their failure to advise you of your rights in a DUI investigation will almost never result in the suppression of evidence and will almost never result in a dismissal. You are far better off refusing to answer questions or cooperating with police to perform "field sobriety tests." Back
  • Police asked me to take a polygraph test. Should I?
    The results of a polygraph or so-called "lie detector" test are not admissible in court because there is no credible science showing that a machine can detect lies. At best, such contraptions can only assess whether the test subject has an emotional response to a question, statement or other stimuli. While such devices may have their uses, they are most frequently used by police as sophisticated props to scam suspects. Police will claim that the device shows that they are lying and is evidence of guilt in an effort to con the suspect into making incriminating statements. Although the polygraph test results will not be admissible in court, any statements the subject makes will be. Since the results of the test cannot be used by anyone as evidence of your innocence, you have very little to gain from agreeing to such a request. Back
  • Do I have to agree to let police search my house or car?
    Generally, it is not legal for police to search your house or car without a search warrant issued by a neutral judge or magistrate. There are some exceptions, however. Police may search these places in an emergency, for example, and sometimes after a lawful arrest. Most of the time, however, the police rely on an exception made by the courts for "consent." That is why police usually ask for permission to search your home, car, or even person before beginning a search. By agreeing to a search, you are giving them consent. Police will often ask for permission even if they have a warrant. That way, if the warrant turns out to be defective for some reason, the defects will be ignored because the police had consent.

    Because police are almost always heavily armed and you have almost no ability to resist them--in the street. If police ask to search, we have found that it is best to politely refuse but to make it perfectly clear that you have absolutely no intention of resisting them if they decide to search anyway. Do not sign any documents that authorize the search. Afterward, you should contact an attorney to help you resist them in the courtroom instead. Back
  • Should I take any field sobriety tests?
    Police investigating a possible DUI offense will almost always ask the driver to perform pre-arrest field sobriety tests. The most common tests include: horizontal gaze nystagmus (a "scientific" test measuring a type of involuntary eye movement), walk and turn, and the one-legged stand. Other, less rigorous tests, include various hand-eye coordination "tests" and other unscientific and unreliable games, like saying the alphabet backwards, etc. It is our experience, and that of the experts we work with, that police are very rarely capable of properly performing these tests outside of the classroom or lab so that these tests are unreliable indicators for people who actually care about truth. Worse, many police officers who investigate DUI offenses routinely are lazy and use pre-filled arrest report forms that may not accurately reflect your performance on such tests. Since you have the right to refuse to participate in these unscientific calisthenics, it is best if you politely refuse without offering any explanation. This includes any "preliminary alcohol screening" device used to test for the presence of alcohol offered prior to your arrest.

    In most states, including California, motorists who are lawfully arrested are legally required to provide a sample of their breath or blood. Refusal to submit such a sample upon request after the arrest will result in harsh penalties and will almost always include both the mandatory loss of your driving privilege and use against you in any trial. Worse, if the law allows it, officers may use force to obtain a blood sample, and you may be injured in the process. Before you agree to submit to any blood or breath test though, ask the officer if you are under arrest (unless he has already told you that you are). If you are under arrest, it is not a field sobriety test and you should probably submit. Back
  • I hit my girlfriend, but we got back together. Can she drop the charges?
    Crimes are not just offenses against other persons, but also against the State. For that reason, an individual has no ability to "drop" charges. Only the prosecutor has the power to drop charges. Unfortunately, in many domestic violence situations it is not uncommon for an aggressor to to use fear or threats to gain the victim's cooperation, so the victim's requests are usually ignored by the prosecutor. Back
  • It's his/her word against mine. Can I be convicted?
    Yes. Testimony of a witness is generally sufficient to Back
  • I'm guilty. Why bother with a lawyer?
    "Guilt," in the context of criminal prosecutions, is a legal determination, rather than a moral one. It is usually better to consult with a criminal defense attorney before talking to police or making any kind of plea bargain in your case. You defense attorney will help you determine whether you are legally accountable for whatever happened, but can also help you influence the consequences and can often persuade prosecutors and judges to examine your particular circumstances to look for solutions that are either less damaging or helpful. In drug and alcohol related offenses, for example, a skilled criminal defense attorney will help you seek treatment and counseling as a meaningful solution. The attorney may also negotiate to limit or drop enhancements or find alternative pleas with consequences less damaging to your future. Finally, every criminal defendant has a right to make the government accountable for its own actions in the case and may choose trial either to demand that the government prove its case, or sometimes just to educate the judge about the entire situation so he can give the defendant a fairer treatment than the government demands. Back
  • What is parole?
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  • What is probation?
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  • I got a traffic ticket. Do I have to pay bail?
    Many supposed authorities, unfortunately including most traffic judges and commissioners in California, attempt to collect "bail" from motorists who appear at their traffic court arraignment. This is highly improper for the simple reason that the Eighth Amendment to the United States Constitution, and United States Supreme Court case authority make it clear that once the court determines bail is appropriate any bail amount in excess of what is necessary to secure a defendant's appearance at trial is constitutionally excessive. In a traffic case, no motorist who appears at his or her arraignment is a flight risk, and therefore the appropriate bail amount to insure their appearance at trial is $0. Unfortunately for citizens, many traffic judges operate their courtrooms like a goldmine designed not for the purpose of dispensing justice, but as part of the state's plan to extract as much money as possible from motorists. If your traffic judge attempts to require bail, you should object on the grounds that bail in traffic cases is constitutionally excessive in violation of the Eighth Amendment. You should also request a dismissal. If the court refuses, continue to handle your case, but consider appealing the decision or complaining about the judge or commissioner to the court's presiding judge or other appropriate authority. Back
  • What is bail?
    Bail is property, usually money, used to guarantee a criminal defendant's appearance at court to answer charges against him or her. While some families have the wealth to put up cash or real estate for bail, most people use a bail bondsman to put up a bond to guarantee the defendant's appearance. A bond is a written agreement to pay the bail amount in case the defendant fails to appear as promised. The bail bondsman will charge a "premium" usually equal to roughly ten percent of the bail amount for the bond. In California, the bail amount is initially set based upon a "bail schedule" created by county judges so that government employees without judicial discretion can set bail immediately in order to allow the defendant to be released before the court date. At the first court date, called an "arraignment," the court will generally exercise its own discretion to setting bail and will do so based upon a number of factors, often including: the seriousness of the offense, the defendant's record of criminal convictions, the defendant's ties to the community and the like. Unfortunately, many judges and prosecutors either misunderstand or willfully misapply the law of bail, which is why it is crucial to have an experienced criminal defense attorney represent you at any hearing at which bail is an issue. Back
  • Do I have a right to trial by jury?
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  • Can I change lawyers?
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  • What is "white-collar" crime?
    "White collar" crime usually refers to financial crimes and abuses, such as fraud, embezzlement, tax evasion, welfare fraud, or other financial or business dishonesty of a criminal nature. These crimes are non-violent in nature and are not carried out by force or threat as with many "blue collar" offenses. Back
  • What is the difference between a felony and a misdemeanor?
    In California, a felony is any crime punishable by imprisonment in the state prison by more than a year. Crimes punishable by imprisonment in the county jail for up to one year are misdemeanors. All other public offenses are "infractions" punishable only by a monetary fine. Back
  • Can you guarantee a result?
    No ethical attorney will guarantee a result. First, all litigation, but especially criminal litigation, is inherently unpredictable and depends on facts that are not always ascertainable at the beginning of a case. It is also unethical for an attorney in a criminal case to charge a "contingent fee" which must only be paid upon obtaining a particular outcome. But a guarantee of a particular result implies that a defendant may get his money back if a different result is obtained, and that would convert the fee agreement into an unethical and illegal contingency agreement. If another criminal defense attorney guarantees a result, insist that they put it in writing. If they won't, the attorney is dishonest. If they do, they are stupid. In either case, you should hire someone else. Back
  • I didn't do anything wrong. What do I have to worry about?
    Unfortunately, our system of justice relies on imperfect human beings at every stage. At the beginning of the case, police obviously made serious mistakes if you were arrested. And that's assuming the officers are not mean-spirited or corrupt. Prosecutors and judges make mistakes. Evidence and lab samples get lost, corrupted or misplaced. All of these things result from the simple fact that all human beings are imperfect. No matter how good or just we may be, we all make mistakes. You don't have to look very hard to find cases in which innocent people were sent to prison. In many cases, innocent people suffered because they did not have the help of someone who understands how the system can make mistakes or because they did not have someone to fight for them. If you are actually innocent, you are far better off actively fighting the allegations with the help of a criminal defense attorney than just waiting to see if someone figures it out. Back
  • Why do I need a criminal defense attorney?
    Criminal defense is not a “do it yourself” project—the outcome of your case will have a direct impact on your life. A bad outcome can mean the loss of freedom (prison or county jail), the loss of money (fines), loss of the means to earn an income (difficulty keeping or getting employment) and damage your reputation. Criminal courts have their own procedure and a lack of understanding of both court rules can hurt you. Lack of understanding of how your rights can shield you can also lead to a worse result. Finally, many offenses, such as drunk driving (DUI) can be very technical and a failure to understand the science of DUI cases can lead to a worse result. Back
  • Can I represent myself?
    As the old adage says, "A lawyer who represents himself has a fool for a client." In no case is this more true than the criminal case. While you have the right to represent yourself, the courts and the law will presume that you have a knowledge of the law and your incompetence will not be considered if you should appeal an adverse result. Most people, even well-educated ones, are simply unable to master the legal concepts and skills required to successfully defend a criminal case. Over the years, we have seen many people try to represent themselves in a criminal matter. In every single case, it was like watching a horrible train wreck in slow motion. If you are accused of anything other than a minor traffic offense, it is a grave mistake to try self-representation. Self-representation is for small-claims matters and traffic tickets. Everyone else should absolutely hire an experienced attorney to fight for them. Back
  • Why should I hire a private attorney when I can get the Public Defender?
    First, not everyone qualifies for a public defender. Second, you will be ordered to pay according to your ability even if the court appoints the public defender. While there are some benefits to having a public defender if you qualify, but one major down side: your public defender has a high case load and cannot compete with private counsel when it comes to spending time working on case directly with the client or the client’s family. Of course, this assumes that you hire an attorney who will personally devote his or her time to your matter! Back
  • I need to hire a criminal defense attorney. How much will it cost?
    A good criminal defense attorney will spend the time it takes to keep you informed as your case develops. No experienced criminal defense attorney will have a fixed rate. He or she must make a preliminary assessment of your case after consulting with you because he or she can’t set a price until he or she has an idea as to how much time must be devoted to the case to achieve results. Cota & Zeiler, APC sets reasonable fixed rates for criminal matters based upon our experience, the nature and complexity of your case and the amount of work that needs to be done. We accept Visa, Mastercard, American Express and Discover for clients who need to make payments. Back
  • Will I save money if I just "plead out?"
    Maybe. Most criminal convictions have a hidden financial side that may not be immediately apparent. For example, most offenses are punishable by a fine as well as imprisonment. If the court imposes a fine, the fine will be increased by a steep tax called a "penalty assessment." Usually, the penalty assessment is much more than the fine itself. The court must also collect various small fees which quickly add up. In many kinds of offenses, such as drunk driving, the court will not be the only one with its hand in the defendant's pocket. There may be restitution payments ordered for injuries or losses sustained by victim, as well as booking fees or emergency response fees resulting in connection with the defendant's arrest. Finally, many offenses, and particularly driving-related offenses, will result in a dramatic increase in insurance costs. Back
  • Can we make a fee agreement where I only pay if you win?
    No. It is unethical for a criminal defense attorney to make a contingency fee agreement in a criminal matter. Back
  • My spouse or friend was arrested. Can I bail them out?
    Probably. Contact a bail bondsman local to the area in which he or she has been jailed. For cases in Southern California, we are happy to provide a referral to a bail bondsman upon request. Back
  • The prosecutor offered me a no-jail plea bargain. Should I take it?
    The answer depends on the facts and law of your case. You should never represent yourself in a criminal matter, even if you are offered a no-jail disposition. Criminal convictions can have serious and permanent consequences that can harm you long into the future. Unfortunately, we have met many people whose "youthful hijinks" made it difficult or impossible to find good jobs, disqualified them from military service, or resulted in the loss of important rights like the right to vote or to own firearms. If you have been accused of a crime, even a non-serious one, you should consult with an experienced criminal defense attorney. If you can't afford one, ask the court to appoint the Public Defender. Back