Frequently Asked Questions

Charged with a Crime?

Know Your Rights in a Criminal Case If you’ve been charted with a crime, the United States Constitution and your state’s constitution promise you some very powerful protections. With every step of the process, new rights will come into play. A local criminal defense attorney will be able to look at your case in detail, and make sure that your rights have been honored up to this point, and that you understand your rights going forward.

You have the right not to incriminate yourself
Commonly described as the right to remain silent. The right against self-incrimination is actually more complex than simply the right to remain silent.

You have the right to be free of “unreasonable search and seizure”
though there are various regulations and exceptions that accompany that right.

You have the right to an attorney
Here at McAllister & McAllister, you will be able to get in touch with a criminal defense attorney who can make sure that you understand your rights. It’s important to note, however, that your right to an attorney does not necessarily apply to your decision as to whether to take or refuse a breathalyzer or blood alcohol test. You also have the right to be advised by police about these rights, commonly called Miranda Rights.

When can the police conduct a search of my property?
There are rules and regulations that surround police searches. The police can search your home, property, car, or financial records if they have probable cause to believe that they’ll find evidence of a crime, and therefore receive a search warrant issued by a judge. But in some situations, the police can also conduct a search without a warrant. If, for example, a potential piece of evidence is sitting out in the open, where there is “no reasonable expectation of privacy,” then the police aren’t required to have a search warrant to conduct a search. They also don’t need a warrant if you voluntarily agree to a search. Many people have let the police search when they didn’t have to, because they didn’t know they had the right to refuse. It is easy to misstep and hurt your case, but a criminal defense attorney will be able to give you the explicit details of search and seizure laws as they pertain to your case.

If you are a suspect, the police are required to read you your Miranda rights before conducting a custodial interrogation. What exactly constitutes “custodial interrogation” has been the subject of many court cases, and is more complicated than you might expect. Clearly, not all discussion between the police and a suspect is “interrogation.” Some discussions are different than interrogation, like the kind of simple practical interaction that might occur between police and a suspect to ask if he wants something to drink, for example. The police don’t need to read a suspect his or her rights at this point. However, in some circumstances a police officer may be found to have interrogated a suspect in custody even without asking direct questions. Once a custodial interrogation begins, the police must read the suspects his or her rights and ensure that they are understood. A criminal defense attorney in your area can.

Many people think that if the police don’t read them their rights, the charges are automatically dismissed. This is usually not the case. Instead, if a suspect is interrogated in custody without being read his rights, then the statement he or she makes may be excluded as evidence. Additionally, any evidence that wouldn’t have been discovered without that original statement may not be admissible as evidence either. Sometimes this lack of usable evidence can lead to dismissed charges, but there is no automatic dismissal if a suspect’s rights are not read.

The 6th Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” But there isn’t a specific Constitutional guideline to determine what exactly constitutes a “speedy trial.” Some jurisdictions have established set time periods within which a criminal case must pass through the system. Cases that exceed these time periods-without good cause or delays at the request of the defendant-may be dismissed for that reason alone.

In jurisdictions without specific time limits, the courts typically consider the actual passage of time and reasons for the delay, how the delay may impact the case, and the defendant’s assertion of his rights to a speedy trial. The seriousness of the charges and possible consequences can also impact the trial judge’s analysis, though this is not a consideration set forth by the Supreme Court.

Any crime that may be punished by imprisonment for more than six months automatically triggers the right to a trial by jury, no matter what the offense is. While there isn’t a universal definition of the term, those crimes determined to be “petty offenses” don’t necessarily warrant a trial by jury. The number of people on the jury can vary also, depending on the state and the seriousness of your crime. Usually a jury of twelve must return a unanimous vote, though the U.S. Supreme Court has approved decisions by some states to accept verdicts that are not unanimous. If the court uses a jury of 6, though, the verdict must be unanimous. Recent U.S. Supreme Court decisions have also determined that if a defendant exercises his right to a trial by jury, aggravating factors for sentencing purposes must also be decided by a jury, and must be established beyond a reasonable doubt.

Cal-OSHA Violations Defense

McAllister and McAllister is unique in representing companies and individuals who are charged with violations of the worker safety regulations. With ever-greater oversight authority, OSHA investigates reports of workers injured on the job. What few realize is that these investigations can lead to criminal prosecutions against the company, its managers and executives, or both. Unfortunately, lawyers who do not regularly represent clients fighting OSHA allegations are also often blindsided by criminal charges being filed.

A regular portion of Kirk McAllister’s practice is devoted to defending against these charges. He handles both the administrative OSHA citation process and, if necessary, the criminal case filed in court. He has won acquittals when trying such a case before a jury. For example, he defended the Hershey Chocolate Company against felony criminal charges brought by Cal OSHA resulting from a tragic accident in which a worker‘s arm was cut off. He was able to get the charges dismissed in their entirety (See Modesto Bee article etc)

Mr. McAllister has also defended cases brought by the Department of Pesticide Regulation. “The secret to successfully defending these cases is early involvement by the lawyer and an aggressive defense. A thorough defense investigation is critical—the biggest mistake you can make is assuming that the government will conduct a fair, complete investigation. You must always remember that you are dealing with regulators who often see only crimes, not accidents”, says Kirk McAllister.