Frequently Asked Questions About Criminal Law
At Nicholson, Gansner & Otis, S.C., we are a go-to criminal law firm for the Madison area. That means we receive phone calls from people every day with questions about a variety of criminal law issues. Common questions include:
What is the difference between a state and federal charge?
Most criminal laws fall under the state’s jurisdiction. That means that if you commit a crime in Wisconsin, most often, the state will bring the charges under Wisconsin state laws. You will be processed and tried through the state court system. If convicted, you will face fines or jail time imposed by the state.
Certain crimes, however, fall under the federal government’s jurisdiction, including crimes that involve crossing state lines such as wire fraud, federal agencies such as the IRS and crimes that occur on federally controlled land such as tribal land. Some crimes overlap with state laws, and in those cases, the parties will decide how to proceed.
This is my first offense. Will I have to go to jail?
Our clients are often most concerned about whether they will have to spend time in jail if they are convicted. Of course, the answer depends heavily on what type of charges you face, whether there are mandatory minimum sentences for that charge and whether you enter a plea agreement. For many low-level offenses, however, you may qualify for Wisconsin’s first offender program. The point of this program is to divert first-time offenders onto a path that avoids the court system.
Should I talk to the police or the prosecutor?
Never talk to the police without an attorney present. Even if you are confident you have done nothing wrong, you may inadvertently give the police information they can later use against you. Your attorney can advise you regarding what questions, if any, you should answer and intervene on your behalf if the questioning starts turning into an interrogation.
As for talking to the prosecutor, follow the same rules as talking to the police. The prosecutor is the person who decides whether to bring criminal charges. The police may be doing a preliminary investigation. The prosecutor is analyzing whether enough evidence exists to bring the case to trial. You should always have legal counsel when talking to a prosecutor.
Was I the victim of an illegal search?
The police can conduct a search if they can show they have probable cause. If they fail to follow proper procedures, the search may be illegal. Probable cause means that a reasonable person would think that the subject of the search has committed a crime. If the police have probable cause to arrest you, they may search you and the surrounding area, such as your car. They may also try to obtain a warrant from a judge allowing them to search a certain place. The judge reviews whether probable cause exists for the search. If the police ask to search your property, but they do not have a warrant, you may refuse. We recommend you contact an attorney immediately if the police search you or your property.
What is the difference between a felony and a misdemeanor?
The law generally divides criminal charges into felonies and misdemeanors based on the seriousness of the offense. For example, shoplifting a small item would be a misdemeanor offense, but stealing a car would be a felony, even though they are both crimes of theft. The main difference lies in the punishment for these crimes. Wisconsin law defines a felony as any crime punishable by imprisonment in state prison. Otherwise, the crime is a misdemeanor.
If I am stopped on suspicion of DUI, should I take the breath test?
Many people wonder if they are better off taking or refusing the breath test when the police pull them over. You could automatically lose your license if you refuse, but blowing a high number may result in even harsher penalties, especially if you have prior OWI offenses on your record. Consult with an attorney regarding what might be the best course of action for your situation.
Talk To An Attorney About Your Questions
These general questions are not meant to advise you on your specific case. Only a personal consultation with a lawyer can do that. Call us at 608-616-4495 or send an online message to schedule a free 30-minute consultation with an experienced attorney today.