Going To Court

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When do I go to court for the first time?

If you are in custody, the authorities are legally supposed to bring you to court within two business days or "as soon as reasonably possible." If you are not being held in jail, your first court date may be anywhere from one week to a month after arrest. Court dates should be written on the citation or release forms.

What happens at the first court appearance?

The first hearing generally involves the appointment of counsel. You indicate who's going to represent you: yourself, a private attorney, or a court-appointed lawyer. Also at the first hearing, you find out the charges against you, and respond by making a demurrer, or entering a plea. This part is called the arraignment. If you've been in jail up until court, the first hearing usually focuses on release issues: bail, bond or release on your own recognizance (OR). This part is called a bail hearing. Even if you're not released the first time, the subject can be brought up at later hearings. The appointment of counsel, arraignment, and bail hearing can sometimes be separate appearances. Many people choose to waive the right to a speedy trial at this time, called "waiving time." This is mainly done to have the most amount of time to plan your defense and build public support.

What are the choices when it's time to enter a plea?

Pleas generally fall into two categories: guilty and not guilty. Normally, people only plead guilty if they've negotiated a plea bargain. If you do not reach or want a plea bargain plead "not guilty" and go to trial.

What happens if I don't show up for a court hearing?

If you miss a scheduled hearing, the judge will usually issue a bench warrant. If an individual with an outstanding bench warrant gets into any kind of trouble, like a traffic violation, s/he is subject to arrest. Judges usually accept extreme excuses for missing a hearing, like funerals or medical emergencies. Conflicts with school or work schedules are not acceptable excuses.

When does the trial happen?

When you do not waive time, trial usually occurs within three to six months after arraignment. When time is waived, trial might not begin for many more months. In both cases, trials are often preceded by hearings at which written and/or oral "motions" are made and heard.

What goes on at trial?

At trial, you can testify if you want to. You can also put on eye- (and ear-) witnesses, and possibly witnesses to testify about your good character. In addition, you have the right to cross-examine the witnesses against you, who will probably be law enforcement officers. You also get to make opening and closing arguments.

The judge may try to forbid you from talking about anything political, and even disallow mention of medical marijuana, on the grounds that it would be irrelevant. Lawyers may be able to get around the judge's prohibitions, but there's considerable precedent (published results of earlier trials) supporting the notion that judges can forbid discussion of political matters at trial.

Your lawyer will handle witnesses, make opening and closing arguments, and file motions. All you do is testify. Sometimes, people represent themselves (called pro per or pro se). In these situations, it's useful to have an attorney as advisory counsel or co-counsel, to help with technical legal matters.

You don't necessarily get a jury trial. The alternative is a bench trial, or trial by judge in which the judge hears the evidence and reaches a verdict. The judge will also decide what will be allowed as testimony and evidence. In state court, you must be charged with at least a misdemeanor to automatically get a jury trial. For petty offenses, you must request a jury trial within 20 days. In federal court, you must be charged with an offense that carries a maximum sentence of greater than six months to get a jury trial. This requirement rules out all infractions and most misdemeanors.

The trial ends with the verdict: guilty, not guilty, or a hung jury. If found not guilty, celebrate. If there is a hung jury (the jury couldn't agree on the verdict), then the prosecutor gets to decide whether to retry you or dismiss the case. Prosecutors often give up or offer a really good deal at this point. If you're found guilty, then the judge sentences you. The judge can either sentence you immediately after the verdict or set a separate hearing for sentencing. You may be qualified to appeal this sentence or the original case ruling, so consult with an attorney.

What happens at sentencing?

You can pack the courthouse. You get to make a speech, because you have the right to allocution. This sentencing statement is normally a chance to ask for mercy and explain mitigating factors, but activists often use it as a chance to discuss political matters, especially if they didn't get to speak their minds at trial.

Return of Property

In nearly every case where a patient or caregiver is cited or arrested for medical cannabis, law enforcement will seize the medicine and often other property they feel is connected with the alleged offense. If this happens in state court, and you are found not guilty or have your charges dismissed or dropped, you can petition the court for the return of your property. Law enforcement officers typically do not return property without a court order. This requires a patient to file a motion for return of property.

If you are certain that the property has been destroyed or is damaged beyond use, you may want to sue the city or county responsible for the property's damage or destruction. In this instance, you would be filing a civil suit. This process can often take years to complete. In order to qualify for filing a civil suit, you must first file a claim form with the appropriate government entity no later than 6 months after the seizure. Once the claim is denied, you then have six months from that date to file the actual civil suit. It may be helpful to have the claim form and, later, the civil suit complaint drafted by an attorney, but that is not necessary.

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