Frequently Asked Questions

If you or your loved have been arrested, you may want to know the basics of Criminal Defense Law in California. The Criminal Defense Attorneys at Kestenbaum Eisner & Gorin LLP provide answers to many of these common legal questions at our law firm daily. Please contact our law office directly to get questions answered about the specifics of your criminal matter. Every case is different. The best “answer” and most effective legal strategy depends on the facts and circumstances surrounding the specific arrest.

1. What happens after someone is arrested?

The police officers involved write reports about the crime, obtain witness statements, run a background check of the suspect, and do further investigation as needed before submitting their work to an investigating detective. For example, in a domestic violence case, the detective in the assault unit usually follows up by contacting any eyewitnesses and the alleged victim, to confirm whether the statements obtained by the responding officers were accurate and thorough. Often, this is they most propitious time for a California Criminal Defense Lawyer to make a dramatic impact in a Pre-Filing Intervention, as the police usually know very little about the person arrested. The police then bring their written investigation to the District Attorney’s Office. A prosecutor reviews the documents to determine whether criminal charges – a misdemeanor or a felony – are warranted. The prosecutor has the option of rejecting the case for criminal prosecution, filing a misdemeanor, or filing a felony charge. If charges are filed, the next step in the criminal process is in court, at an arraignment. A defendant has the right to be arraigned on criminal charges within 2 business days of his arrest. During this period of time, a defendant can bail out or stay in custody while the case is reviewed for criminal filing.

2. How does someone gets bailed out? Do I get the bail money returned when the case is over?

Bail is financial assurance that a defendant will return to court after being released from custody. There are two ways to post bail. First, “cash” bail may be posted with the custodial agency to cover the entire amount of the bail. At the end of the case, if bail is exonerated, the defendant will receive a check for the entire amount posted (takes about 8-10 weeks). Second, a “bond” through a bail company may be posted. A defendant pays about 10% of the entire amount to a bail company, which puts up the entire bail amount through a bond. If bail is exonerated, the 10% is not returned to the defendant because this is the fee he paid to the bail company to post bail on his behalf (like an insurance premium). Although the standard bail fee is 10%, there are certain circumstances where clients can qualify for an 8% premium. The bond company requires that the attorney has already been retained before qualifying the individual for a reduction.

3. My child was under 18 and was arrested? Can I bail him out?

There is no bail in Juvenile Court. The juvenile is either deemed “detained” or “non-detained” during arraignment. He/she remains in the same status until a contested detention hearing or the end of the case. The juvenile process relies on the California Welfare and Institute Code, rather than the Penal Code, to rehabilitate rather than punish youthful offenders. The main detention facility in the San Fernando Valley is Sylmar Juvenile Hall, and in Los Angeles it is Eastlake Juvenile Hall.

4. Do I need a criminal defense lawyer if I have been falsely accused?

Many cases are resolved with police just closing their files, because the evidence of a crime is simply insufficient. The court system does not get involved. However, as with many things in life, the world is not perfect and police officers do make mistakes. People have been falsely accused of rape, domestic violence, murder, and even drug possession because officers were either making negligent mistakes in their investigation, intentionally framing suspects, or intentionally lying about probable cause to justify an otherwise unlawful search of a home, car, or even of someone’s person. Innocent people have served years in prison only to be released upon DNA testing. We have heard clients say “Hey, I am innocent! I figured I would go explain the events to the police and this would all go away!” Unfortunately they were wrong. At times police officers are inclined to disbelieve what a suspect tells them, and they may not have the time or motivation to fully investigate a client’s story. What happens? The next thing the suspect knows is that he/she is arrested, placed into custody, and does not know how to clear his/her name. Our criminal defense firm has had personal experience with representing clients who are simply innocent — these have proven to be some of the most difficult cases. In sum, someone who is completely innocent may be in the greatest need of representation.

5. The person that called the police does not want to prosecute, does that mean that no charges will be filed and that I will be released from custody?

Not necessarily. There are many reasons why the alleged victim or reporting party may have a change of heart. It may be that the report of crime (violence, theft, or other violation) may have been false or inaccurate. It may also be that the person is scared to proceed with a prosecution. The police and the prosecutor’s office are aware of all the reasons, and do not just “drop charges” especially in domestic violence cases. They attempt to re-interview the reporting party to understand the reason behind the change of heart. The only exception is alleged sex crimes cases. The reporting party’s desire to not testify and prosecute are respected, thereby causing the criminal charges of unlawful sex to be dismissed.

6. Does your law firm need the entire legal fee immediately?

In most cases a payment plan can be worked out with our law firm. Our criminal defense firm accepts credit cards, and has written retainer agreements.

7. What happens at the first court hearing after charges are filed? What is an arraignment?

Arraignment is the initial court proceeding where a defendant is advised of his charges, and usually enters a “Not Guilty” plea. If a defendant is out on bail, he/she stays out of custody unless the prosecutor demonstrates to the court that the defendant is a flight risk or a danger to the community—something above and beyond what the posted bail would prevent against. In other words, the prosecutor has to explain to the judge why the defendant needs to be rearrested when he has already voluntarily shown up to court after posting bail. The prosecutor clearly has the burden of proof here, and bail gets increased in cases where the defendant is on probation, there are new charges filed, or the source of bail (the monies used) are connected to illegal conduct.

8. What is a misdemeanor?

A misdemeanor is a criminal offense that is punishable with less than a year of jail time. Misdemeanor offenses are less severe than felonies. In most misdemeanors cases, community service can be a substitute for jail through the use of an aggressive and active criminal defense strategy in Southern California courtrooms. Examples of misdemeanors include cases of DUI, Hit and Run, Battery on a Spouse, Reckless Driving, and Vandalism, which are considered less serious offenses under California Criminal Law because there is little or no injury or property damages alleged.

9. What is a felony?

A basic felony is a criminal offense that is punishable with a year of jail, or 3 years in prison. Felonies are serious criminal offenses and are considered more severe than misdemeanors. Bail is usually set at $10,000 or higher, and the District Attorney’s Office typically seeks substantial custody time. Examples of felonies include Murder, Vehicular Manslaughter, DUI Causing Serious Injury, Child Molestation, Arson, Grand Theft, Embezzlement, and Rape. These offenses carry substantial prison time under the California Penal Code.

10. In a DUI case, should I go and plead guilty without a lawyer?

The U.S. Constitution has been interpreted by the U.S. Supreme Court as giving everyone to right to act “pro-per,” or, in other words, to represent him/her self without an attorney. However, our courtroom experience has shown that “pro-pers” cannot do nearly as good of a job defending themselves as an experienced criminal defense attorney can—even if the litigant is a civil attorney who does not have a criminal defense or prosecution background. As former District Attorneys, we’ve dealt with many “pro-pers” in court and have seen numerous errors committed by litigants representing themselves. Also, a DUI plea carries a mandatory license suspension. On a first time DUI, a license is suspended for 120 days. A win at the DMV hearing would prevent a further suspension. However, if you are convicted of a first-time DUI in court, the DMV could still pull your privilege to drive. In court, then, the only way to keep your license is to have the DUI charge dismissed all together. If this is not possible, there is a way to get the suspension reduced. You must file an SR-22 with the DMV (i.e. proof of insurance) and proof of registration in a first-time alcohol program, known as the AB-541. In turn, the DMV will reduce the suspension to 30 days, and return you the privilege to drive with restrictions for 90 days. All this is quite technical and time-consuming, especially when you include the continuous legal and procedural updates that are taking place in this area of law.

11. If I was arrested for a felony, does that mean I will face felony charges in court?

A prosecutor makes an independent decision on what charges to file, irrespective of what the arrest was for. In most domestic violence cases, the Los Angeles Police Department arrests people for felony charges carrying $50,000 bail. After many of these arrests, prosecutors file misdemeanor offenses, rather than felonies, especially after an immediatepre-filing intervention by our law firm.

12. What if I feel that the police violated my constitutional rights?

A criminal defense attorney seeks to exclude evidence obtained as a result of police misconduct. At times, police misconduct occurs in searches that take place during ordinary traffic stops or in a suspect’s home. Additionally, if law enforcement is too aggressive in trying to obtain an incriminating statement from a suspect, it may violate the suspect’s Miranda rights. Litigation in the criminal court allows a defense lawyer to protect his client’s rights by submitting motions to the judge seeking to exclude the recovered evidence or received statements from trial. Often a successful motion to suppress evidence cripples the prosecutor’s case, causing the case to either be dismissed or substantially reduced in plea negotiations.

13. I have been charged with a crime in Southern California, should I hire a criminal defense attorney?

After you have been charged with a criminal offense, the best thing you can do is to consult with an experienced Los Angeles Criminal Defense Attorney. You want to speak with a criminal attorney who has successfully handled cases involving the same crime that you have been charged with. Additionally, you want to retain the services of a lawyer who is familiar with the courts and laws of the city where you were charged or arrested. Hiring a criminal defense attorney is the best decision you will make. By hiring an attorney, you ensure that you will receive the representation and resources you will need to successfully fight your criminal charges both in and out of court. A lawyer will protect your best interests and place every effort into your successful defense.

14. Do you present evidence of mitigation in a courtroom on behalf of clients?

The criminal court system in Los Angeles, California deals with thousands of cases. How do criminal defense lawyers humanize a client to busy criminal courts? While this is not the easiest task to accomplish in the Southern California justice system, our criminal defense lawyers work to humanize all of our clients to mitigate a possible sentence.

Persuading Los Angeles prosecutors, probation officers and judges to recognize that a client’s life cannot be defined based solely on the conduct that brought him/her into court takes patience and tenacity. Our lawyers work to explain that few persons are accurately defined by the worst thing they ever did. Unfortunately, unless we intervene to demonstrate the contrary, the default of the justice system is to assume that this crime resonates to our client’s behavior in daily life.

For our criminal defense clients, the offense conduct is often negative (presuming the prosecutors can prove it), but the entire picture of the defendant’s life may be far more positive and inspirational. Showing a client’s entire background to the court comes with an in-depth investigation, and usually proves to be a major benefit to the outcome of the case. Character letters from employers, family members, social organizations (church, temple, AYSO, wherever client participates) assist our clients on a daily basis. This is one substantial factor in obtaining probation for clients instead of state prison. Often in our pre-filing intervention work, presenting clients’ entire backgrounds have resulted in charges being filed as misdemeanors rather than felonies, or in criminal charges not being filed at all.

15. If the defendant is not a U.S. citizen, how will the immigration status be affected by an arrest?

Criminal convictions may cause direct and grave consequences to someone’s immigration status, often leading to deportation proceedings. The INS guidelines are often very complex and our criminal defense attorneys frequently confer with immigration law specialists to properly advise clients. Before going to court, our criminal lawyers discuss with clients their immigration status. Often our Los Angeles attorneys seek charges that are not considered by the INS as moral turpitude offenses (which are subject to deportation), and to convert any possible custody time to community service work.

In Los Angeles, the L.A. County Sheriff’s Department is responsible for running the jails and verifies immigration status upon receiving an inmate. As a result, as soon as an inmate is in custody (even if charges are later dismissed), an “immigration hold” may be placed subjecting him or her to deportation proceedings. The inmate may be deported from the United States after the INS picks the inmate up from Sheriff’s custody. The saddest part is that the inmate may be innocent of all charges and still be deported because his/her immigration status is questioned.

Deportation may be preventable, especially when a defendant has financial resources to bail out immediately after an arrest. In Los Angeles County, a defendant is typically transferred into Sheriff’s custody from the arresting agency’s jail within 48 hours of arrest. This happens ordinarily right after the arraignment. Subsequently, a criminal disposition may be reached in court without jail time. An immigration hold in the Sheriff’s jail can be entirely avoided if the accused is out on bail and his immigration status is not checked within the court system.

16. Statev. Federal Court: What is the difference in criminal defense issues?

Federal court cases are typically investigated by federal agencies, including the FBI, DEA, Customs, Treasury, and other federal agencies. Sometimes state and local agencies also file charges in federal court if the offenses involve major quantity of drugs, weapons or other contraband. The federal government has more resources to prosecute cases, including special units to prosecute drugs, fraud, and violent crimes. While the state and local government also has special units, they have fewer prosecutors with larger case loads. Also, local law enforcement does not have nearly as many resources to complete investigations with as much thoroughness as federal law enforcement. For the most part, it is definitely in a criminal defendant’s interest to be prosecuted in state, rather than federal court. The state of California’s sentencing system has more flexibility in terms of alternative sentencing options than the United States Sentencing Guidelines.

17. Accusation of Hit & Run: Should you call the police yourself in response to a letter you received about an accident you were in?

The criminal offense commonly known as Hit and Run is a violation of the Vehicle Code, which requires all drivers involved in a car accident to stop and exchange information. If there are injuries, the offense may be prosecuted as a felony, as the law considers leaving the scene of an accident without rendering aid to an injured party as felonious conduct (which carries a maximum of a year in the county jail or three years in prison). Often, LAPD or other investigating agencies will send a letter to the driver that left the scene of the accident, or the vehicle’s owner, asking them to contact a detective. This is when a lawyer could be of great help. By speaking to the police without an attorney, you may be incriminating yourself. Many feel they can talk their way out of it: “I stopped, but then left because there was no damage,” or “the other party said it is no big deal and we don’t need to exchange information.” The frequent outcome of legal self-help is criminal charges being filed. The next letter the person gets is: “you are now required to be in court to answer criminal charges.” If a criminal defense lawyer is hired before a detective investigates the case, he or she may prevent charges from being filed simply because the police may have insufficient evidence to prove that the suspect is the driver without the suspect’s statement. Our L.A. criminal defense attorneys have prevented charges from being filed, or, if they are filed, they have caused them to be dismissed through appropriate provisions in the Penal Code.

18. Drug Addiction – How is this issue addressed within the court system, and within your criminal defense practice?

The obvious and sad reality is that addiction often leads to criminal behavior including theft, drug sales, DUI, and other more serious criminal violations. There are numerous drug programs in Southern California, in-patient and out-patient, available to treat drug and alcohol addiction. Often we have used these programs as an alternative to jail or prison for clients in custody as part of the Alternative Sentencing scheme. Under California criminal law, a defendant will avoid jail or prison upon successful completion of a drug rehabilitation programs such as Deferred Entry of Judgment, Proposition 36, and Drug Diversion. While keeping clients out of jail is the firm’s main objective, we are also concerned about recidivism. We want to prevent clients from relapsing and being rearrested. Accordingly, we counsel clients to take their rehabilitation seriously. We encourage them to commit to change with a sponsor or the 12-step lifestyle, and also encourage seeing a therapist on a regular basis.

19. What is Embezzlement?

The criminal conduct called “embezzlement,” is typically charged in California criminal courts as a violation of Penal Code Section 487(a)—commonly known as Grand Theft (if the theft exceeds $400). The offense carries a maximum of 1 year in the county jail or 3 years in prison. If the amount of theft exceeds $50,000, the “Economic Crimes” enhancements are applicable, and the prison time is increased to 4 years and up. When appropriate mitigation is presented to the Court and the District Attorney, the large majority of our clients have not gone to jail or prison. This is because we worked out alternative dispositions involving community service, restitution, probation, and fines instead of jail. What if the employer wants to drop the charges? The police and prosecutors are usually unwilling to dismiss a case once it is filed, as they are concerned that resources have been expended to investigate, document, and bring the case to court.

20. Failing to Appear in Court: What are the Consequences for your driving privilege?

A failure appear reported by a court to the DMV will result in your license being suspended, until this issue is cleared up with the court. Sometimes clients have numerous failures to appear, throughout Southern California. Each of these warrants must be cleared up to have the DMV reissue driving privilege. Courts will notify the DMV once the failures to appear are cleared. So long as the driving privilege is not suspended for any other reason (such as excessive points, DUI conviction, no insurance on file), you can receive your license back when you show proof of insurance to the DMV, and pay a license reassurance fee. Also, the DMV may require that you present it with a “Z” abstract, issued by the court, showing proof that the failure to appear has been cleared.

21. How can I clear up an arrest warrant?

Clearing up an arrest or bench warrant can be done one way: appearing in front of the court that issued the warrant. As long as the warrant is in the system, the person can be arrested for it in any state, in any contact with the police or government agency, and even coming into the United States at the airport. Immediate action to clear up the warrant is the best way to approach this legal problem. Voluntarily coming into the court may often prevent later jail or prison time if the person is actually arrested on the warrant.

22. Why should I hire Kestenbaum, Eisner & Gorin?

At Kestenbaum, Eisner & Gorin, our legal team is comprised of aggressive defense attorneys that are Former Los Angeles Prosecutors. We are well-versed in all criminal law and defense matters, and very experienced working within the Southern California criminal justice system. Our criminal defense attorneys have over 50 years of collective courtroom experience and we are fully prepared to undertake our clients’ cases. When we work with our clients, we do everything possible to make sure that they receive the attention, resources, and dedicated legal counsel that they deserve. We seek to keep our clients out of jail through Alternative Sentencing programs and to expunge their criminal records so that the weight of a criminal conviction, if not avoided, can be lifted. These are some of the reasons why we have been recognized as a Top 5% U.S. Law Firm year after year.

23. What types of cases does your law firm handle?

The Criminal Defense Attorneys at Kestenbaum, Eisner & Gorin handle all misdemeanor and felony cases involving: DUI, Sex Crimes, White Collar Crimes, Drug Crimes, Violent Crimes, Federal Crimes, Domestic Violence, Juvenile Crimes, Three Strikes Crimes, and Theft Crimes. Our Los Angeles criminal defense attorneys also represent clients who have been charged with property crimes, internet crimes, hit & run, and probation violation. Additionally, we are able to help clients with their warrant, DMV suspension, and engagement matters.