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Mississippi Criminal Law

What is the difference between a misdemeanor and a felony?

A misdemeanor is a criminal offense that is lower than a felony. In other words, a misdemeanor is punishable by either one year or less in a county jail or fines of less than $1,000 or both. Examples of misdemeanors are: traffic violations like speeding; simple assault; and shoplifting. A felony, on the other hand, is a more serious crime and involves a harsher penalty. A person who is convicted of a felony may be sentenced to serve at least one year in the State Penitentiary and pay more than $1,000.00 in fines. Examples of felonies are: murder, robbery, DUI (3rd offense), and aggravated assault.

What is a preliminary hearing?

It is a probable cause hearing where the court makes a determination whether or not the state has enough proof of the alleged crime to bind the defendant over for grand jury action. It is not a trial.

What is a bond and why does one have to be posted?

A bond is a certain amount of money or property (to be determined by a judge at the initial appearance) promised to the Court by the defendant or surety guaranteeing the court that the Defendant will appear before the court when ordered. This guarantee allows him to be released prior to a trial. If the defendant is able to post bond, he/she will be released from custody in order to return as may be required by the Court. If the defendant cannot post the bond, he or she will have to remain in custody until the trial date. The purpose of the bond is to make sure that the defendant will show up for trial.

What should I do if and when I am stopped by law enforcement?

Upon seeing blue lights you should stop your car at the first available and safe location. Although you do not have to submit to any field sobriety tests or perform any other such requests, you do have an obligation to cooperate with the officer to the extent that you are not violent or uncivil toward the officer. Therefore, if the officer requests your driver's license or ask you to step out of the car, etc, you should comply. If the officer does not write you a ticket promptly and you are concerned that you are being investigated for a crime, you may ask the officer if you are free to leave. If so, you may get into your car and leave. If not, simply request that the officer then take you with him and ask to call a lawyer immediately.

What are Field Sobriety Tests (FST) and should I submit to them if asked to perform them?

Field Sobriety Tests (FST) are generally standardized tests which (some) officers have received training to administer and assist them in determining if a suspect is driving while under the influence of alcohol or drugs. Most of these test are considered "divided attention" tests taught by the National Highway Traffic Safety Administration (NHTSA). The three most recognized and used are: the walk-and-turn, one leg stand, and the horizontal gaze nystagmus test (HGN) or eye/pen test. Other tests like the finger-to-nose and ABC may be used but are not considered standardized. You have no legal obligation to submit and may refuse them without legal penalty. The problem with submitting to these tests, even when you feel like you could pass them, is that you do not know what the officer is looking for and even if you "pass", the officer may still be inclined to arrest you for DUI. There could also be other factors which make you "fail" them and the officer will only attribute your failure to your being DUI and charge you accordingly.

What are the penalties for a DUI?

The law as recently changed, and the following penalties are effective September 1, 2000:

DUI First Offense: $250.00 - $1,000.00 fine; imprisoned for not more that 48 hours; and attendance of an alcohol safety education program (MASEP); driver's license suspension for not less than 90 days and no more than 1 year.

DUI Second Offense (within 5 year period): $600.00 - $1,500.00 fine; 5 days or no more than 1 year imprisonment; not less than 10 days nor more than 1 year community service; suspension of your driver's license for 2 years. The 5 day minimum jail sentence may not be suspended or reduced by the court or prosecutor as part of a plea bargain. The 2 year license suspension may be reduced to 1 year if you meet certain requirements. No hardship license or temporary permit is available to second offenders. Your automobile(s) may be ordered impounded or immobilized for the entire length of your license suspension. If you meet certain requirements, the court could order the installation of an ignition interlock device on your automobile(s) which must be blown into before the car will crank. If it detects alcohol present at a pre-set level, it will not allow the car to crank.

DUI third or subsequent offense (within 5 year period): This is considered a felony. $2,000.00 - $5,000.00 fine; imprisoned not less than 1 year and no more than 5 years in the state penitentiary; vehicle forfeiture; license suspension for 5 years. No hardship license or temporary permit is available. However, the 5 years license suspension may be reduced to 3 years.

These are the statutory imposed penalties. They do not address the "penalties" you will incur from paying increased insurance rates and the effect that a conviction and license suspension may have your current or subsequent employment.

Can I get a Hardship License?

Only First offenders who are not considered to have refused the breath test are considered. If you meet this basic hurdle, you may petition the Court for the return of your driver's license if your license has been under suspension for at least 30 days and you can show that the revocation of your license would hinder your ability to continue your employment, continue attending school/education, or obtain necessary medical care. If granted, your license is reinstated for all purposes. There is no legal method to obtain a limited permit to drive to and from work, school, etc.

Should I take the breath test?

Most attorneys will have a difference of opinion on this question. You are the only one that can decide this for yourself and particular situation. However, you should know that you have the legal right refuse the breath test but that you may suffer license suspension for 90 days or for 1 year as a result, in addition to the penalties and suspension discussed above. Mississippi law states that anyone who operates a motor vehicle has impliedly given their consent to submit to the officer's request to take a test to determine their blood alcohol if that officer has probable cause and reasonable grounds to make such request. Your refusal will subject you to forfeit your license or driving privileges. However, you do have a right to request a judicial determination on whether or not your license should be suspended pursuant to your refusal. Therefore, this question is difficult to answer. If you take the test and "pass" you are in a good position. However, if you take the test and "fail", you have basically given the prosection your "confession" and although you may have other defenses available to you, it would be best if the prosecution did not have this information. Whether you submit to the test or not, ALWAYS ask for a blood test and/or obtain one for yourself immediately upon being released. The results should be provided to your attorney and NEVER provided to the police willingly.

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