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Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW
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The Criminal Process

Getting Arrested in Oklahoma

There are three possible scenarios which can set the criminal process in motion. Charges can be brought against a citizen of Oklahoma either through 1.) a charging Information, which lays out the relevant factual situation and the offense for which the individual is charged, or by 2.) grand jury indictment. In either situation, an arrest warrant will be issued, and an individual may be arrested pursuant to the warrant.

The third situation involves an officer arresting an individual without a warrant. Generally speaking, the police can make an arrest without a warrant if:

  • the police observe the person attempting or committing a crime, or
  • a reliable informant provides reasonably sound information to the police regarding a felony crime and the person who committed that crime, and if time permits, the police verify the information, or if time does not allow, the police should be reasonably certain that the information is valid, or
  • the time lost in obtaining a warrant would permit the perpetrator to escape or evidence to be lost, and
  • the officer has probable cause for an arrest.

When an individual is arrested, he or she is processed, usually at the local police station or county sheriff’s office, and depending on the criminal charges involved, can be held over for an initial appearance before a judge who has jurisdiction. Persons with criminal charges may hire an attorney and bondsman to schedule what is known as a "walk-though" in order to get a bond amount set without having to wait in the county jail for the normal time required to clear an outstanding warrant. 

The Initial Court Appearance

Once an individual is arrested and processed, the adversarial process begins. The individual, who is now an incarcerated Defendant, must appear before a judge with proper jurisdiction within a reasonable time. This initial appearance usually occurs within 24-48 hours, unless the arrest happens over the weekend. If the individual is still incarcerated, then the initial appearance often happens via video arraignment. Bond will be set at the initial arraignment.

The Defendant will remain incarcerated until he or she either posts bail or is granted a release on his or her own personal recognizance. If a person schedules a walk-though with his attorney and bondsman, then he or she will usually conduct the walk-though in the morning and then appear before the judge that same day or very soon thereafter to enter an initial plea of "not guilty."

In some counties, such as Oklahoma County, a person may have multiple initial appearances scheduled prior to the actual charges bring formalized and filed by the District Attorney's office. In most of these counties, your attorney can contact the judge's staff to see whether or not your appearance is required the day of the potential initial appearance. This is yet another reason why it is so important to retain a criminal defense lawyer as soon as possible.

Lowering Your Bail in Oklahoma

Many counties in Oklahoma use a pre-formulated schedule for bail amounts based on the nature of the crime involved, while other counties rely on a judge’s discretion. A Defendant can request a hearing to lower bail at any time during the criminal process. Generally, a judge will consider the following in deciding whether to lower bail:

  • The offense the Defendant is charged with;
  • The criminal history of the Defendant, if any;
  • Whether the Defendant is a flight risk;
  • Any potential danger to the public; and
  • Other relevant factors the judge may deem applicable.

Keep in mind, the main purpose of setting bail is to ensure that the Defendant will appear at all required court proceedings, while also protecting the public from any potential threat of harm. Luckily, there are other restrictions that can be put in place, such as GPS ankle-monitoring, which may sway a judge into lowering bail. One factor that a judge will not consider: the Defendant’s ability to pay the bail. Still, according to the Oklahoma Constitution bail is a right, except that it may be denied for:

  • capital offenses when the proof of guilt is evident, or the presumption thereof is great;
  • violent offenses;
  • offenses where the maximum sentence may be life imprisonment or life imprisonment without parole;
  • felony offenses where the person charged with the offense has been convicted of two or more felony offenses arising out of different transactions; and
  • controlled dangerous substances offenses where the maximum sentence may be at least ten (10) years imprisonment.

Yet, even if the Defendant is charged with one of the above offenses, the proof or presumption of guilt must be great. Furthermore, the judge must also find that there is no condition he or she can impose that will assure that there is no threat of danger to the public.

Usually, a judge will be more likely to lower a criminal defendant's bond if he or she has a retained a criminal defense attorney to request the bond reduction on behalf of the defendant. When someone hires legal representation, it shows the judge that the defendant is serious about fighting the case. It also shows that the defendant is less of a liability if put on a lower bond since the defendant has made a significant financial commitment to his or her case. T

he idea here is that a defendant is less likely to flee or fail to appear from court if he or she is financially invested in his or her defense.

Posting Your Bail in Oklahoma

There are multiple methods one may employ to post his or her bail. If enough funds are readily available, a Defendant can simply post cash in the full amount. The reality of the situation though is that most people will not be in a position to do such. Moreover, if a cash bond is used to secure bail, then any court costs, fines, and fees that occur at the end of the case will be taken directly from the cash bond prior to any amount being refunded to the person who posted the cash bond.

With this in mind, the majority of criminal Defendants use bail bondsman services. An Oklahoma bail bondsman will usually require that the Defendant post between 10% and 15% of the bail with the bail bondsman acting as a surety for the remaining amount. Many bail bond providers will also require collateral if the Defendant is not a resident of Oklahoma. Most bail bondsmen will be more likely to post a surety bond for an out-of-state defendant if he or she has already hired a criminal defense lawyer.

Remember though, you do not have to post bail. For whatever reason, many Defendants choose to remain in custody pending the outcome of the criminal process. Sometimes waiting in jail can be used as a tactical advantage in negotiations with the prosecution. 

Oklahoma Preliminary Hearings

The Oklahoma Constitution guarantees all individuals charged by information with a felony the right to a Preliminary Hearing. A Preliminary Hearing is an evidentiary hearing at which the State of Oklahoma, by and through the District Attorney’s Office for the county in which the Defendant is charged, must present enough evidence to give the judge probable cause the alleged crime was committed. Specifically, the prosecutor must present enough evidence to show the court:

  • probable cause that a crime was committed, and 
  • probable cause that the defendant committed the crime.

If the judge presiding over the Preliminary Hearing finds the prosecution has met its burden, then the judge will “bind over” the Defendant for trial. Probable cause is an extremely low burden of proof, so most cases that go to Preliminary Hearing are bound over by the judge. The Defendant will then have to appear for District Court Arraignment in front of the District Judge assigned to his or her case to start the pretrial process.

However, many times a Defendant will waive his or her Preliminary Hearing in the interest of further negotiating a plea agreement if he or she is guilty of the offense or if there is an overwhelming amount of evidence. Most prosecutors will threaten to stop any negotiations, or pull any previous recommendations as to potential plea deals, if the Defendant decides to exercise his or her right to a Preliminary Hearing.

Regardless, sometimes a Preliminary Hearing can help negotiations: if the prosecution's witnesses do not testify well on the stand, or if some new evidence comes to light through testimony, the prosecution may begin to realize that his or her case is not as strong as he or she initially thought.

Oklahoma Plea Negotiations

There is neither a Constitutional right nor a statutory right to a plea agreement. However, the reality of the Oklahoma criminal process is that the vast majority of criminal cases end in a plea bargain. An experienced Oklahoma criminal defense attorney will never coerce a Defendant to take a plea agreement. Plea agreements should only be pursued when the Defendant is ready to admit responsibility to the court and plead guilty.

There are two other types of pleas a Defendant can enter in order to dispose of a criminal case. A Defendant can enter a "no contest" plea, which means that the Defendant does not contest the evidence that the prosecution is alleging against him or her, and even though the Defendant does not wish to plead guilty, he or she acknowledges that the evidence cast in the light most favorable to the prosecution would be sufficient to convict the Defendant. Another plea is known as an "Alford" plea, which allows the Defendant to maintain his or innocence but accept the plea agreement that has been worked out with the prosecution.

Both pleas are the functional equivalent of a normal "guilty" plea for the purposes of the criminal case; however, these other options may offer the Defendant more protection from a collateral civil lawsuits that could be filed by the alleged victim of the crime or someone on his or her behalf.

In some cases, the Defendant is not willing to accept an offer from the prosecution but is unwilling to take the huge risk of going to jury trial. In this case, a criminal lawyer may advice his or her client to enter what is known as a "blind plea" to a judge. A blind plea is known as such because the Defendant is going into the sentencing blind after the plea has been entered: the judge can sentence the Defendant to any term or probation or incarceration that is authorized by law.

This is often used to circumvent the prosecution when it is being unreasonably harsh with its plea recommendations, but it can also be used as a last resort when a Defendant does not want to go to jury trial or does not have the facts that would present well to a jury in general.

Oklahoma Jury Trial

Every person charged with a criminal offense is entitled to a jury trial in Oklahoma. An Oklahoma misdemeanor jury will consist of six people. An Oklahoma felony jury will consist of twelve people. You have the right to be represented by an attorney of your choice at jury trial. There are numerous other jury trial rights including but not limited to:

  • the right not to testify, 
  • the right to confront witnesses, and
  • the right to use the court’s process to compel the production of favorable evidence.

Furthermore, a Defendant’s guilt must be proven beyond a reasonable doubt, which is the highest burden in our legal system. The jury verdict must be unanimous as to either guilt or innocence. If the jury cannot come to a unanimous decision, the case will be declared a mistrial. If a mistrial is declared, the State of Oklahoma will have the option of retrying its case-in-chief against the Defendant.

Jury trials are not common; in Oklahoma, only a small percentage of cases actually go to jury trial for verdict. Consequently, it is very important to hire a criminal defense lawyer that has experience with jury trials and has taken multiple criminal cases to verdict, preferably at least ten cases or more.

A jury trial can be viewed as a last resort for some Defendants. In other cases, the prosecution may have issues with its witnesses and/or evidence, and the defense attorney may advice the Defendant that a better result could be achieved from a jury of lay people instead of from a particular judge.

Oklahoma Appeal

Every person convicted in the State of Oklahoma is entitled to a direct appeal of the conviction to Oklahoma Court of Criminal Appeals. Time is of the essence, as there are certain requirements and procedures which MUST be set in motion in an Oklahoma appeal; these actions must be commenced within the statutorily enumerated time periods. For this reason, it is imperative that you are represented by an experienced Oklahoma criminal defense attorney.

Post Conviction Relief

Through the Oklahoma Post Conviction Procedure Act, a Defendant is allowed to collaterally challenge his or her conviction if one of the following instances arises:

  • the conviction or the sentence was in violation of the Constitution of the United States or the Constitution or laws of this state; 
  • the court was without jurisdiction to impose sentence; 
  • the sentence exceeds the maximum authorized by law; 
  • there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice; 
  • the sentence has expired, his suspended sentence, probation, parole, or conditional release unlawfully revoked, or he is otherwise unlawfully held in custody or other restraint; or 
  • the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.

It is important to note that many of the issues that would normally allow for a Defendant to petition a Court for Post Conviction Relief will be waived if they were evident at the time of Appeal and the Defendant either failed to appeal or failed to propose the error. This concern can be erased by hiring an experienced Oklahoma criminal defense attorney.

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