Criminal Defense FAQs
At Ardent Legal, PLLC, we love when our clients have questions. If you have never engaged in the legal process before (or even if you have), you are sure to have more than a few. Below, Morgantown criminal defense attorney, Brianna W. McCardle, answers some criminal defense frequently asked questions.
What criminal defense services do you provide?
We provide criminal defense services in misdemeanor and municipal cases in Monongalia County, Marion County, Preston County, Taylor County, and Harrison County. We represent clients who have been charged with DUI, assault, battery, public intoxication, underage possession, obstruction, shoplifting, domestic battery, driving on a revoked or suspended license, violation of protective order, and probation violation. We also offer services with expungement of criminal convictions and criminal charges. Depending on the circumstances, we also occasionally handle felony charges.
What is the difference between a misdemeanor and felony?
Misdemeanors are crimes that are punishable by no more than one year in jail. Felonies are crimes that are punishable by more than one year in the state penitentiary (i.e., prison). Municipal violations are crimes that are violations of municipal/city code provisions, and are mostly punishable by fines although some violations are punishable by confinement in jail.
What is an expungement?
Expungements are sought to remove criminal charges and convictions from your record. People commonly (and mistakenly) believe that if criminal charges are dismissed that they will not show up on a criminal background check. This is incorrect. Even if you have charges that have been dismissed they will still show up on your record. Certain crimes in West Virginia are eligible for removal from your record (by way of expungement). Generally, non-violent misdemeanor and felony convictions are eligible for expungement, as well as certain criminal charges. Depending on your conviction(s) you may be eligible for accelerated expungement as well. An experienced criminal defense attorney can help you assess your eligibility for expungement of criminal charges and convictions.
Do I have to prove that I am innocent?
Absolutely not. The burden of proof in criminal cases is never on the individual charged with a criminal offense (the Defendant). The burden to prove guilt beyond a reasonable doubt is always on the State throughout every stage of the criminal proceeding and never shifts to the person accused of a crime. The person accused of committing a criminal offense does not have to do anything to prove their innocence.
What is “beyond a reasonable doubt”?
Beyond a reasonable doubt does not mean beyond all doubt. A reasonable doubt is one based upon reason and common sense—the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. Again, the burden to prove the accused’s guilt beyond a reasonable doubt is always on the State.
What are your fees in criminal cases?
We provide affordable flat fee arrangements in criminal cases. The fee charged depends on the circumstances and complexity of your individual case.
Can I testify in my criminal case?
You can choose to testify in your criminal case, but you always have the right to remain silent and not testify. The decision of whether you should testify, and the implications of your decision to testify (or not), should be discussed at length with your attorney prior to trial. You cannot be forced to testify if you do not wish to. If you choose not to testify at a jury trial, jurors will be specifically instructed by the judge that they are not to assume anything by the Defendant choosing not to testify.
Will I have a jury trial?
The right to a jury trial is guaranteed by the United States Constitution as well as the Constitution of the State of West Virginia. However, the right to a jury trial may be waived, but the State can object to a waiver of the right to a jury trial. If the State objects, the case proceeds to a jury trial. In misdemeanor cases, the Defendant must request a jury within twenty (20) days from the first appearance before the Magistrate. Individuals accused of committing felony offenses are automatically granted the right to a jury trial. Misdemeanor offenses are tried in Magistrate Court and felony offenses are tried in Circuit Court. Jury trials for misdemeanor offenses in Magistrate Court consist of six jurors and jury trials for felony offenses in Circuit Court consist of twelve jurors. The decision reached by the jury in criminal cases must be unanimous meaning that every person on the jury must agree to convict (or acquit) the Defendant.
What is a bench trial?
A bench trial is a trial without a jury. The judge is the sole decider of the facts and law of the case, and ultimately, the Defendant’s guilt or innocence. As with jury trials, there are advantages and disadvantages to having a bench trial, and an experienced criminal defense attorney can help you to assess which may be best for your particular case.
What is plea bargaining or a plea agreement?
Many criminal cases are resolved ahead of trial through plea bargaining. A plea bargain, or plea agreement, is where the State and Defendant reach an agreement on the plea in a particular case (usually guilty or no contest) in exchange for a reduced charge and/or sentence. Sometimes a plea agreement results in one or more charges being dismissed by the State in exchange for a guilty plea to a charged (or lesser) offense. The advantages of a plea may outweigh the costs of going to trial and facing the uncertainty of a jury or judge’s decision and can result in a reduced sentence.
What is pretrial diversion?
Pretrial diversion occurs before the Defendant has entered a plea to the offense charged. The State foregoes prosecution of an offense for the Defendant to undergo and meet certain conditions (e.g., drug/alcohol counseling or education, community service, completion of certain classes, participation in community corrections or day report, etc.). Pretrial diversion is available in certain circumstances.
What is deferred adjudication?
Under a deferred adjudication agreement, the Defendant agrees to plead guilty to the offense charged (or to a lesser charge), but the guilty plea is not accepted or entered by the court unless the Defendant fails to meet certain conditions (e.g., drug/alcohol counseling or education, completion of certain classes, community service, participation in community corrections or day report, etc.). If the Defendant successfully completes the requirements of the deferred adjudication agreement and does not have any new violations, then the charges against them are usually dismissed or reduced.
Why should I hire an attorney?
Hiring an experienced criminal defense attorney can be the difference between a conviction and acquittal. It can also be the difference between a harsher or reduced sentence if convicted. An experienced attorney can also help you reach a favorable plea, enter into pretrial diversion, or obtain a deferred adjudication.
Our initial consultations are always free. If you or a loved one have been charged with a criminal offense, contact our Morgantown, WV defense attorney, Brianna W. McCardle, for a free initial consultation.