Criminal and Traffic

CRIMINAL LAW OVERVIEW

Criminal law is a general term used to describe a body of rules that define conduct prohibited by the government because it threatens and harms public safety and welfare, and establishes punishment for the commission of such acts. Each level of government, city, county, state and federal, have their own set of rules that the public is to follow, and not every violation of the rules is considered a "crime". A crime is a violation of law that carries with it the punishment of a fine and/or incarceration and is prosecuted by state and federal governments. Crimes are divided into two categories, misdemeanors and felonies. Felony offenses are far more serious crimes that carry with them the possibility of much harsher sentences. Some typical criminal offenses include:

• Disorderly Conduct
• Battery
• Criminal Damage to Property
• Theft
• Bail Jumping
• Drug Offenses
• Burglary
• Robbery
• Sex Offenses
• Computer Crimes
• Drunk Driving (Operating under the Influence)-2nd Offense and Higher
• Operating after Revocation
• Eluding an Officer

Non-criminal offenses (often referred to as civil violations) are violations that usually carry only monetary punishments called forfeitures, and are prosecuted by city and county governments. They are not as serious as crimes and involve no incarceration time. Common civil violations include:

• Speeding
• Lane Deviations
• Underage Alcohol Violations
• 1st Offense Drunk Driving
• Signal Violations

There are also civil violations that mirror typical criminal charges (disorderly conduct, possession of drug paraphernalia, retail theft). Though the conduct could be pursued in criminal court as crimes, if the behavior is not serious, the government may choose to impose this lesser citation and reduced penalty structure.

PARTIES IN A CRIMINAL ACTION

The person violating the law is referred to as a "defendant". A defendant is represented by a criminal defense attorney. The government entity is the "plaintiff" and is represented by an attorney referred to as a "prosecutor". Your defense attorney will defend you against the charges by protecting your rights from being violated, reviewing the charge and evidence against you, raising legal challenges to the charge and the evidence where appropriate, and explaining all of the options available to you. The prosecutor works for the government and seeks to prove you guilty of the offense that you have been charged with. The prosecutor does NOT work for the defendant, and anything a defendant says to a prosecutor, police officer or investigator can, and will be, used against him/her in the prosecution. When charged with any violation, it is best to contact an attorney immediately.

CRIMINAL JUSTICE SYSTEM OVERVIEW

Once a crime is alleged to have occurred, law enforcement will investigate the violation and make an initial decision on whether to charge a person or refer them to the prosecutor's office. A person alleged to have violated the law will be either arrested immediately, issued a citation with a court date and released or receive a summons and complaint in the mail with a date to appear in court. If arrested or cited, the officer handling the matter makes an initial decision on the offense, but that may change later after it is reviewed by the prosecutor's office. The prosecutor has the authority to add or remove charges that were initially referred by the police, and the prosecutor has the authority to decide not to pursue the alleged violation at all.

The first appearance is called an "initial appearance", and at that date the defendant will be informed of the charges and penalties. If you fail to appear when charged with a misdemeanor or felony, a warrant will be issued for your arrest. If you fail to appear when charged with a civil violation, you will be convicted of the offense. At an initial appearance on a criminal matter, the judge will also set "bond or bail", which are rules a defendant must follow while the case is pending. Bond may even involve payment of money to be held by the court while the case is pending, which is to ensure your future appearance in court. A violation of your rules of release will result in additional criminal charges.

In misdemeanor cases, the next appearance is typically a pre-trial conference with the prosecutor. It is an opportunity to review the discovery, or police reports, and to provide information informally to the prosecutor. Your attorney will discuss the facts and the law, and a prosecutor will offer a "plea bargain". The plea bargain is an offer to settle the case without a jury trial, and typically involves a defendant pleading guilty or no contest to one or more offenses or violations he is charged with. If an agreement is reached with the prosecutor, the case is set for a plea hearing, and sentencing follows immediately. The recommendation for a sentence in a plea bargain is typically joint between the defendant and the prosecutor, meaning both recommend a particular sentence to the judge. Any plea of guilty or no contest will result in a criminal conviction and a criminal record.

In felony matters, the next appearance is a preliminary hearing, wherein the prosecutor must prove that there is enough evidence for the case to continue on in the system as a felony charge. This is often referred to as a "probable cause hearing". If the prosecutor does not meet his burden of proof, the case is either dismissed or reduced to a misdemeanor offense. More often than not, because their burden of proof is very low, the case will continue on as a felony. After the preliminary hearing, the case will continue through the system much the same as a misdemeanor offense, except that felony offenses tend to move faster.

If no plea bargain is reached, a defendant will then have a jury trial. In a jury trial, the prosecutor must prove beyond a reasonable doubt that the defendant committed the offense s/he has been charged with. The job of the jury is to decide the facts of the case, or what really happened, after they hear all of the evidence. The judge's job is to rule on the law and instruct the jury on the law. If the jury believes that a law violation occurred, they will find a defendant "guilty". If not, the defendant is found "not guilty". If a guilty verdict is rendered, the defendant is then convicted of the offense and will be sentenced at a later date.

Once convicted, a defendant is sentenced, which is the process of a judge imposing a penalty for the violation. Most crimes carry a maximum sentence, something a judge can not exceed, and some even have a minimum penalty, a penalty the judge can not go below. Penalties can involve payment of fines, jail or prison time, and probation (often called supervision) by the Wisconsin Department of Corrections.

Once a criminal case is complete, the defendant has a right to appeal the sentence and conviction (though this right may be somewhat limited in cases that resulted in a guilty plea). An appeal is a review by another court. Your defense attorney will file a notice with the court after sentencing if you decide to pursue an appeal and there are time limits to pursue the appeal. In the event that the reviewing court finds an error, the case will be sent back to the trial court for further proceedings. An appeal does not necessarily mean that the case will be dismissed, even if you are successful on appeal.

IMPORTANT FACTS

In Wisconsin, anyone charged with a criminal offense in a county that subscribes to Wisconsin Circuit Court Access service will have their basic court information placed on a public website after being formally charged. Once charged, this information can be viewed by anyone and the record will not be removed even if the case is dismissed. It is widely used by employers and landlords in addition to criminal justice staff. If you have been contacted by police and questioned, it is wise to contact an attorney immediately in the event the case can be informally disposed of prior to filing of a formal charge. This may prevent a public record from being created.

Once you are convicted of a criminal offense, whether by plea or guilty verdict, it will stay on your record for your lifetime. There are some narrow situations where a charge can be expunged, or erased, but it is rare and there are rules that exclude the majority of cases and defendants from this option. If convicted of a criminal offense, there may be collateral consequences such as loss of drivers license privileges, loss of professional license, or restrictions on work that may not specifically be discussed in court. These collateral consequences could be devastating to a person's ability to continue to work and live, and may only be brought to light if you have a defense attorney working for you.

A prosecutor is the only person in the system that can offer a plea bargain. A prosecutor may choose not to make any offers to reduce or dismiss charges, but rather may insist that a defendant plead to everything that has been charged. Without an agreement with a prosecutor, there is no deal to be had.

Regarding sentencing, though in many instances a judge will adopt a recommendation made jointly by the defendant and a prosecutor, the judge does not have to do so. S/he may sentence a defendant to anything s/he feels is appropriate under the circumstances of the individual case, up to the maximum penalty allowed by the law.

It is important to consult with an attorney at the earliest stage of a criminal prosecution. Only an experienced criminal defense attorney will be able to evaluate your case and protect your rights in the process.