Criminal Defense Law General FAQs
Federal Criminal Investigations and Prosecutions FAQs
Nebraska Gun Laws FAQs
Violent Crime FAQs
Drug Crimes FAQs
Nebraska Theft Laws FAQs
Nebraska Sexual Assault FAQs
Nebraska Firearms Crimes FAQs
Nebraska Assault Charges FAQs
Nebraska Marijuana Laws FAQs
Drug Delivery and Possession FAQs
Traffic Stop FAQs
Criminal Defense Law General FAQs
If you have recently been arrested and charged with a crime, or you have reason to believe the police wish to speak to you regarding an ongoing investigation, you are probably feeling worried and overwhelmed, particularly if this is your first experience with the criminal justice system. Navigating the criminal justice system can be intimidating for even those with experience. One wrong move can cost you dearly. Unless you have been through the process before, however, you have no way of knowing what moves to make and which ones to avoid. This is one of the many reasons why retaining the services of an experienced Nebraska criminal defense attorney is the only move you should make at this juncture.
If you find yourself accused of a crime, or the target of an investigation, you will likely have a number of questions relating to your situation. The best way to ensure all of your questions and concerns are answered and addressed is to consult with an experienced Nebraska criminal defense attorney. In the meantime, however, the following are some of the most frequently asked general criminal law questions and answers relating to things such as the need for an attorney and how to find the right attorney. If you have additional questions or concerns regarding your specific situation, please feel free to contact the criminal defense attorneys at Petersen Criminal Defense Law.
1. How can I find the right criminal defense lawyer for my case?
Your choice of criminal defense attorney will have a direct, and important, impact on the outcome of your case. Often, the attorney you retain is the deciding factor between a conviction and a positive outcome. Although hiring an attorney to represent you when you have been charged with a criminal offense is a highly personal process, there are some common steps you should consider taking to ensure you hire the right attorney for your case. Learn more.
2. Do I need a criminal defense lawyer if I haven’t been charged with a crime yet?
When a serious crime has been committed, it is not unusual for the police to spend a significant amount of time investigating the crime before actually making an arrest. During the investigation stage you might be contacted by the police and asked to give a statement or you might get wind of the fact that the police appear to be focusing on you as a suspect. If you have yet to actually be charged with a crime though, you may be wondering if you need an attorney. Each investigation and prosecution of a crime is unique; however, the answer is likely “yes” you should consult with an experienced Nebraska criminal defense attorney. Learn more about when you need to retain a criminal defense attorney.
3. Do I really need a defense attorney if I am not guilty?
Being arrested and charged with a criminal offense is bad enough. Even worse is being charged with a crime you, in fact, did not commit. The U.S. criminal justice system is founded on the concept that an individual is innocent until proven guilty in a court of law. In theory, that means that if you did not commit the crime, the prosecution should not be able to prove you did. Unfortunately, it is not a perfect system and innocent people do end up convicted of crimes they did not commit. To prevent this from happening to you it is always in your best interest to consult with an experienced criminal defense lawyer if you have been charged with a crime. Learn more.
4. Do I need a criminal defense attorney if I plan to plead guilty?
The converse of being innocent, of course, is being guilty. Although you have the right to force the State of Nebraska to prove you guilty beyond a reasonable doubt, you may choose to forego that right and enter into a plea agreement with the State. Just because you are certain you wish to enter a plea of guilty, however, does not mean you don’t need a criminal defense attorney. Learn more about why you should still retain the services of a criminal defense attorney.
5. What should I do if the police want to talk to me?
During the pendency of an investigation, law enforcement officers typically try to “talk” to everyone who might be a witness, a “person of interest,” or a suspect. If they want to speak to you, there is no way of knowing with any degree of certainty which category you fall into unless you are the victim of a crime. Of equal importance is the simple fact that your status could change rapidly after chatting with the police based on something you said. Learn why you should make it a rule never to talk to the police without an attorney present.
6. What are my rights if I am a suspect or I have been charged with a crime?
Even if you are the most law-abiding citizen in the country, you should still have a basic understanding of the rights bestowed on you by the U.S. Constitution because you never know when you may need to exercise, or even waive, those rights. Learn more.
7. Is there anything I should do to get ready for my first meeting with a criminal defense attorney?
If you have never found yourself in need of the guidance and protection of a criminal defense attorney before, the prospect of your initial consultation may come with a certain degree of trepidation. What should you bring with you? What questions should you ask? How much should you divulge to the attorney? While every meeting is as individual in nature as the people at the meeting, learn more about what you might be able to do to make the most of your initial consultation.
If you have been charged with a criminal offense, or believe you are the target of a criminal investigation, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
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Federal Criminal Investigations and Prosecutions FAQs
For the average person, being accused of a criminal offense is a frightening experience. If you have been charged with a crime that is being prosecuted in federal court, the entire experience is even more intimidating. Everything about the federal criminal justice system is just a little scarier, from the organized way in which law enforcement agencies investigate and arrest suspects to the formality of the court proceedings. If you have been charged with a federal crime, or you are the target of a federal investigation, the most important step you can take to protect yourself and your rights is to retain the services of an experienced Nebraska federal criminal defense attorney.
Because every prosecution is unique, there is no way to cover all the questions you may have regarding your case here. However, the following are some of the most frequently asked questions and answers relating to federal criminal investigations and prosecutions. If you have additional questions or concerns regarding your specific situation, please feel free to contact the federal criminal defense attorneys at Petersen Criminal Defense Law.
1. What is the difference between a federal and a state crime?
In the United States we operate under a federalist form of government, which means we have both a strong, central government – the federal government – and numerous smaller governments – the individual state governments. We also have two separate judicial systems, the federal court system and the individual state court systems. Consequently, both the federal government and the state governments can enact and enforce laws. As such, you can be prosecuted for a federal criminal offense, a state criminal offense, or both. Learn more.
2. Who investigates federal crimes?
At the federal level, there are a number of law enforcement agencies that investigate criminal offenses. Often referred to as “alphabet” agencies because the average person knows them by their acronyms, these agencies include the Federal Bureau of Investigations (FBI), Alcohol Tobacco and Firearms (ATF), Immigrations and Customs Enforcement (ICE), and the Drug Enforcement Agency (DEA). Learn more about who investigates federal crimes.
3. Is smuggling drugs a federal crime?
Both the State of Nebraska and the United States federal government have laws relating to the possession, manufacture, and/or transportation of controlled substances. In Nebraska, it is illegal to distribute or deliver a controlled substance. “Smuggling” is usually defined as moving large quantities of a controlled substance across state lines and/or over the border from one country to another. Using that definition, smuggling would be illegal in the State of Nebraska; however, because smuggling operations often cross state lines and may involve very large quantities of drugs, they are usually investigated by federal law enforcement agencies and subsequently prosecuted in federal court. Learn more.
4. What are the Federal Sentencing Guidelines?
If you are convicted of a federal criminal offense, the Federal Sentencing Guidelines will be used to determine your sentence. Although the Guidelines are officially advisory in nature, most judges stick closely to the recommended sentencing range found in the Guidelines. Two primary factors are used to determine a sentence under the Guidelines – the offense level and the defendant’s criminal history. A judge may deviate up or down from the recommended sentence range. However, because most judges hand down a sentence within the range provided in the Guidelines it is important to know where you fall under the Guidelines if you are facing federal criminal charges. Learn more about the Guidelines.
5. What are “White-Collar Crimes”?
The term “white-collar crime” is often used to refer to non-violent, financially motivated criminal offenses. Many white-collar crimes are prosecuted at the federal level, including offenses such as cyber crimes, identity fraud, SEC violations, and mail fraud, as well as embezzlement, money laundering and copyright infringement. People often make the mistake of viewing white collar crimes as less serious crimes, but a conviction for a white collar crime can be punished by hefty fines and a lengthy term of imprisonment. Learn more.
6. Do I need a “federal” criminal defense attorney if I’m being prosecuted for a federal crime?
Prosecution of a criminal case follows the same basic steps in federal court as it does in state court. However, there are a number of significant differences in both procedure and law between the two systems that make it important to have an attorney who has experience in federal court on your side. In addition, having an attorney who is familiar with the federal criminal court system means your attorney will have contacts throughout the system that may be invaluable during the prosecution of your case. Learn more about why you need a federal criminal defense attorney if you are facing federal charges.
If you have been charged with a federal crime in Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced federal criminal defense attorney.
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Nebraska Gun Laws FAQs
In the United States, the right to bear arms is both firmly entrenched in the law through the Second Amendment to the Constitution and a highly controversial topic. Regardless of which side of the debate you espouse, if you live in the State of Nebraska you should be familiar with our state’s gun laws. Because of the potential consequences of misinterpreting a gun law, it is always best to check with an experienced Nebraska criminal defense attorney if a law, or a situation, is unclear. The following, however, are some of the most frequently asked questions and some brief answers relating to Nebraska’s gun laws. If you have additional questions or concerns regarding a particular law or your specific situation, please feel free to contact the criminal defense attorneys at Petersen Criminal Defense Law.
1. When am I allowed to use force in Nebraska to protect myself?
The State of Nebraska does allow the use of force for the purpose of self-defense. However, such force may only be exercised upon the belief such force is “immediately necessary for the purpose of protecting [oneself] against the use of unlawful force by such other person on the present occasion.”
2. When, if ever, am I allowed to use deadly force to protect myself?
Nebraska does allow the use of deadly force as a means of self-defense, but only if you believe such force is “necessary to protect [oneself] against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat.”
3. Are there exceptions to the lawful use of force?
Yes. Under certain circumstances you cannot use force to protect yourself, including:
- To resist an arrest which the actor knows is being made by a peace officer, even if the arrest is unlawful.
- If you are using force to resist force used by a property owner (or occupier) who is using force under a claim of right to protect the property, unless you are making a lawful arrest, you are making a reentry or recapture of your own property, or you believe the force is necessary to prevent death or serious bodily injury.
4. Do I have a duty to retreat?
Sometimes. Even if you would otherwise be legally justified in using force, or deadly force, that justification may not apply if you fail to retreat as required by the law. Nebraska does impose a duty to retreat unless you are at your home or place of work.
5. Am I required to obtain a permit in order to purchase a firearm?
Yes. In the State of Nebraska, you must have either a Concealed Carry Weapon (CCW) permit or a handgun permit. To obtain your permit you must first meet all the requirements and then take the required class. Nebraska is a “shall issue” state, meaning that as long as you meet the requirements the state must issue you a CCW permit. In a “may issue” state, the state retains the discretion to issue or not issue a permit even if an applicant meets all the requirements. Learn how to obtain your CCW permit.
6. Am I required to register my firearms in the State of Nebraska?
No. The State of Nebraska does not require registration of firearms.
7. Does Nebraska have magazine or assault weapon restrictions?
No. The State of Nebraska does not limit the size of magazines allowed in the state nor does it restrict the type of firearms you may own.
8. Can I open carry in Nebraska?
“Open carry” refers to the ability to carry a firearm on your person or in your vehicle with the firearm clearly visible as opposed to concealed. In most places, Nebraska allows you to open carry. If you open carry in a vehicle, the weapon must be clearly visible. Also, there are areas that do prohibit open carry so be sure to check before doing so.
If you have been charged with a firearm-related offense in the State of Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
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Violent Crime FAQs
Being accused of any criminal offense is cause for concern about your future. However, if you have been charged with a violent crime, the odds are high you are facing serious potential penalties if convicted, including a lengthy prison sentence. The most important thing you can do for yourself if you find yourself charged with a violent crime is to retain the services of an experienced Nebraska criminal defense attorney.
Because there are a number of offenses that fall under the purview of “violent crimes” and because every case is unique, it is impossible to answer all of the questions you may have. The following are some of the most frequently asked questions and answers relating to violent crimes and how they are commonly prosecuted. If you have additional questions or concerns regarding your specific situation, please feel free to contact the violent crimes defense attorneys at Petersen Criminal Defense Law.
1. What is a “violent crime?
In the FBI’s Uniform Crime Reporting (UCR) Program, violent crime is composed of four offenses: (1) murder and non-negligent manslaughter, (2) forcible rape, (3) robbery, and (4) aggravated assault. Violent crimes are defined in the UCR Program as those offenses which involve force or threat of force. In the real world, a violent crime is probably exactly what you would imagine it is – a crime in which violence was used or threatened.
2. Do I need to hire a violent crimes attorney?
If you have been charged with a criminal offense that qualifies as a “violent crime,” it is in your best interest to retain the services of an attorney who has considerable experience defending cases similar to yours. Not all criminal offenses are the same. Therefore, not all criminal cases call for the same approach to their defense. With a violent crime, for example, there is usually a victim who will play an important role in how your attorney approaches your defense. Find out more here.
3. How will an attorney defend a violent crime?
Because each criminal prosecution includes a unique set of facts and circumstances, there is no “one-size-fits-all” defense for violent crimes. However, there are some differences in the way a criminal defense attorney is likely to approach building a defense to accusations that include a violent crime than with other types of offenses. For example, the victim’s standpoint will be critical. For instance, your attorney will need to know if the victim is taking an active part in the prosecution and demanding you receive the maximum sentence or is reluctant to even get involved and without an opinion as to what happens to you. Learn more.
4. What happens first in a violent crime case?
The early stages of a violent crime case are even more important than in some other types of criminal cases. One reason is there is often much more at stake in a violent crime case because the accusations are usually give rise to felony charges. Knowing your rights and being sure not to do or say anything that can hurt your case will be particularly important at the very beginning of a violent crime prosecution. Find out more…
5. What rights do I have when charged with a violent crime?
The rights you have when charged with a violent crime are the same as any criminal defendant has in the United States. The difference can be that those rights may be even more important to you as a defendant in a violent crime case. For example, you have the right to a fair trial by a jury of your peers. This right is of particular importance because sometimes people can focus too much on the accusations in a violent crime case instead of the fact that you are innocent of those accusations until proven guilty beyond a reasonable doubt. Learn more about your rights.
6. Can I claim self-defense in my violent crime case?
Many violent crime offenses involve physical harm to an alleged victim. But as the old adage goes, “There are two sides to every story,” and it may be the alleged victim was actually the aggressor in your case. If so, you undoubtedly want to claim self-defense in your case. Self-defense is what is known as an “affirmative defense,” meaning you are not claiming that you did not engage in the conduct alleged by the State. Instead, it says you did engage in the conduct but you had a legal justification for doing so. Find out more about whether self-defense might be a viable defense in your case here.
7. What are some common defenses to assault?
Because of the individual nature of a criminal prosecution there is no way to know what defenses might work in your case without consulting with an experienced Nebraska criminal defense attorney. However, there are some common defenses used when defending charges for assault. Learn more.
8. What are some common defenses used when defending sexual assault charges?
The same advice applies here – it is always best to consult with a defense attorney about the specific facts and circumstances of your case to determine what defense options you might have available to you. However, there are also some common defenses used when defending someone charged with sexual assault. Find out more.
9. Can a violent crime attorney defend me on murder charges?
Yes. Murder fits within the formal definition of a “violent crime.” Defending a murder charge is always challenging because, unlike all other criminal offenses, the one person who really knows what happened (other than the perpetrator) is not available to testify. Murder is also the most serious of all charges, making it imperative you hire an attorney who has the experience and skill to properly defend you. Your freedom, and possible your very life, is at stake. Learn more.
If you have been charged with a violent crime in Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced violent crime criminal defense attorney.
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Petersen Criminal Defense Law FAQs – Drug Crimes
Since the “War on Drugs” began back in the 1970s, laws relating to drug offenses have been strengthened across the country and the penalties for violation of those laws have been increased. If you have been arrested for a drug crime in the state of Nebraska, the best thing you can do for yourself, and for your future, is to retain the services of an experienced Nebraska criminal defense attorney.
Because every drug-related criminal prosecution involves a unique set of facts and circumstances, it is impossible to answer all of the questions you may have related to your case. However, the following are some of the most frequently asked questions and answers related to drug crimes and how they are commonly prosecuted. If you have additional questions or concerns regarding your specific situation, please feel free to contact the drug crime defense attorneys at Petersen Criminal Defense Law.
1. How serious are the penalties for dealing marijuana in Nebraska?
In recent years there has been a growing movement across the country to legalize the medicinal, and even recreational, use of marijuana. A significant number of states have now passed laws allowing the use of medical marijuana and/or personal possession of marijuana. Other states have decriminalized possession of marijuana as well. Dealing marijuana, however, remains a crime in most states, including Nebraska. Read more about Nebraska’s dealing marijuana laws here.
2. If I have a prescription can I get my charges dropped?
Prescription drug abuse has become a huge problem in the United States over the past several decades. As a result, law enforcement agencies have really cracked down on anyone found in possession of prescription medication without a valid prescription on their person. Moreover, the days when you could give a friend one of your pain pills or sleeping pills because they suffered a minor injury or are having a temporary problem sleeping are over. Today, that friendly gesture could land you in jail. Whether or not having a prescription can help you depends on the facts of the case. Learn more.
3. How serious are the penalties for possession of a controlled substance?
Both the federal government and the state of Nebraska have enacted a version of a controlled substances act that classifies “drugs” into schedules based on whether or not the drug has a known medicinal use and how high the likelihood of abuse is with that drug. Possession of any controlled substance is a serious crime. However, the level of severity of the penalties for a conviction depend on things such as what schedule the controlled substance falls into and the quantity involved. Find out more about possession of a controlled substance here.
4. Can I get my drug crime conviction expunged?
Although many states allow an individual who has been convicted of a misdemeanor, or even a non-serious felony, to “expunge,” or erase, a conviction under certain conditions, the state of Nebraska is not one of them. As a general rule, once you are convicted of a drug crime in Nebraska, that conviction will remain on your criminal history record for your lifetime. Find out more.
5. Can I be charged with a drug crime for driving under the influence?
When most people think of “driving under the influence,” they assume the individual in question is under the influence of alcohol. In the state of Nebraska, however, you can also be charged with driving under the influence of drugs (DUID). The penalties for DUID are just as severe as they are for a traditional DUI. As such, a conviction for driving under the influence of drugs can negatively impact your future for many years to come. Learn more.
6. What are some of the non-judicial consequences of a drug crime conviction?
Everyone knows you could be sentenced to a lengthy term of imprisonment for a drug- related conviction. But what many people do not think about are the non-judicial consequences of a drug crime conviction. Even if you manage to avoid a prison sentence, you could lose your current job and be disqualified for future employment with a drug conviction on your record. And this is just one of the many possible unanticipated consequences of having a drug crime conviction on your record. Find out more.
7. What if I was smuggling drugs – is that a federal offense?
Many drug-related offenses could be investigated by the federal government, the state of Nebraska, or both. Because smuggling drugs typically involves transporting drugs across state lines, it is a crime more commonly investigated and prosecuted by the U.S. federal government. However, the facts and circumstances of the case will ultimately determine who prosecutes the offense. Learn more. about drug smuggling offenses.
8. What should I do if I get arrested for a drug crime in Nebraska?
If you should get arrested and charged with a drug-related criminal offense in the state of Nebraska, the most important thing you can do for yourself is to retain the services of an experienced Nebraska drug crime attorney. There are, however, also some things you should not do immediately after being arrested for a drug-related crime as they could jeopardize your defense down the road. Find out what not to do.
If you have been charged with a drug crime in Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
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Petersen Criminal Law Defense Nebraska Theft Laws FAQ
In the State of Nebraska there are numerous different criminal offenses involving theft. If you have been arrested and charged with one of these offenses, it is important to understand both the judicial penalties you could face if convicted and the non-judicial consequences of a theft-related conviction. Because a unique set of facts and circumstances surrounds every prosecution, specific questions and concerns should be discussed directly with an experienced Nebraska criminal defense attorney. The following, however, are some of the most frequently asked questions relating to the various theft offenses in the State of Nebraska, along with brief answers. If you have additional questions or concerns regarding a particular law or your specific situation, please feel free to contact the criminal defense attorneys at Petersen Criminal Defense Law.
1. Are there different types of theft in Nebraska?
Yes. There are actually several different offenses which fall under the larger category of “theft” in the State of Nebraska. All theft offenses have one thing in common – the perpetrator gains something of value as a result of the criminal conduct. If you have been charged with a theft offense, it is important to understand the nature of the charges against you. Find out more.
2. Is shoplifting considered a “theft” offense?
Yes, it is. Shoplifting is governed by Neb. Rev. Stat. § 28-511.01. According to the statute, shoplifting may involve concealing or taking possession of merchandise, altering the price, or transferring goods or merchandise from one container to another, causing an incorrect price to ring up, or removing or bypassing a security alarm. Learn more.
3. What is a “white collar crime?”
Most people have heard the term “white collar crime” before. However, you may not know exactly what it means. White collar crimes are financially-motivated crimes typically committed by educated individuals in the middle to higher socio-economic classes. If you find yourself involved in a white collar crime investigation, do not make the mistake of thinking these crimes are less serious than other crimes. On the contrary, you could face serious penalties, including a period of incarceration, if convicted of a white collar crime. Find out more about white collar crimes.
4. Does Nebraska have a separate offense for identity theft?
Yes. Nebraska actually has a fairly extensive identity theft statute which encompasses a variety of different ways in which a perpetrator can steal someone’s identity. Identity theft can be charged as either a misdemeanor or a felony in the State of Nebraska, depending on the monetary value of the loss suffered by the victim. The potential penalties for identity theft will also depend on whether you are charged with a misdemeanor or felony. For more information on identity theft, continue reading…
5. I have been charged with embezzlement. Now what should I do?
Embezzlement is one of the more common white collar crimes. The primary difference between what people generally think of as “theft” and the crime of “embezzlement” is that embezzlement involves being lawfully entrusted with something of value at first and then unlawfully converting it. For example, if you are a cashier at a store, people will give you money all day when they make purchases. Therefore, you are initially lawfully entrusted with those funds. However, if you then put the money in your pocket instead of the cash register, you have unlawfully converted the funds. Learn more.
6. Won’t I just get probation for a non-violent white collar theft conviction?
This is a mistake many defendants make – assuming just because the offense for which they are charged is not a violent offense they are not facing any serious penalties. White collar crimes, and other theft-related offenses, are serious crimes. As such, if you are a defendant in a theft prosecution, you face the same potential penalties as defendants in some violent crime prosecutions. To find out more, read on…
7. Is fraud the same thing as theft?
Not exactly; however, they are often related. Just as there are several different types of theft, there are also several different types of fraud. Like theft, fraud cases are typically financially motivated, although not always. Also like many forms of theft, many types of fraud fall within the scope of “white collar crimes.” Learn more.
8. Are cybercrimes considered a type of theft?
In the new electronic age, a new category of criminal offenses has evolved, known as cybercrimes. As the name implies, a cybercrime is typically defined as any criminal offense perpetrated with the use of a computer and/or the internet. While not all cybercrimes are theft crimes, many are. Because cybercrimes are relatively new types of offenses, it is important you work with an attorney who understands these crimes and who has the knowledge and experience to provide a successful defense if you are charged with one of these crimes. To learn more, keep reading…
9. Will I be charged in federal or state court for a theft offense?
You could be investigated by federal and/or state law enforcement authorities and prosecuted in state and/or federal court for many theft offenses. Some theft offenses, particularly certain white collar crimes, are more commonly investigated by federal law enforcement agencies if a substantial amount of money is involved. In order for federal law enforcement authorities to have jurisdiction, it is generally the case that the conduct involved must cross state borders. Because many white collar crimes involve electronic financial transactions, the border-crossing test is usually easily satisfied, thereby allowing for involvement by federal law enforcement and prosecution in federal court. Find out more about what theft crimes federal law enforcement investigates here.
If you have been charged with a theft-related offense in the State of Nebraska,contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
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Petersen Criminal Law Defense Nebraska Sexual Assault FAQ
Simply being accused of sexual assault can have a devastating effect on all aspects of your life. If you are ultimately convicted of sexual assault in the State of Nebraska, you will likely be facing a lengthy term of imprisonment as well. If you have never been charged with a serious criminal offense before, you are undoubtedly feeling confused and worried about the outcome of your case. Because we understand what you are going through, we have prepared some answers to the most frequently asked questions relating to sexual assault offenses and basic criminal procedures in the State of Nebraska. If you have additional questions or concerns regarding a particular law or your specific situation, please feel free to contact the criminal defense attorneys at Petersen Criminal Defense Law.
1. What constitutes sexual assault in Nebraska?
Sexual assault is basically defined as sexual penetration without consent. Sexual assault can be based on oral, anal, or vaginal penetration. Sexual assault is the legal term in Nebraska for what people commonly refer to as rape. Sexual assault can be charged as 1st, 2nd, or 3rd degree sexual assault in Nebraska.
2. What are the potential penalties for a sexual assault conviction?
The penalties you face, if convicted of sexual assault, will range from no time in prison to 50 years, depending on a number of factors. For example, a conviction for 1st degree sexual assault carries a possible punishment of 1 to 50 years in prison. In addition to your actual sentence, you will likely be required to register as a sex offender – possibly for the rest of your life.
3. What is considered statutory rape in Nebraska?
The age of consent in Nebraska is 17 years old; however, under certain circumstances it is not a crime to engage in sexual conduct with someone who is 16 years old under the state’s “Romeo and Juliet” law. It is a 1st degree felony to subject someone under the age of 12 to sexual penetration if you are at least 19 years old or older OR if the victim is between the age of 12 and 16 and you are over the age of 25.
4. What are some common defenses to allegations of sexual assault?
Although it may seem like an uphill battle to defend allegations of sexual assault, it can be done. The facts and circumstances of your case will dictate how your attorney approaches your defense; however, some commonly used defenses include:
- Consent – this defense admits that the conduct occurred but that the victim consented. If the victim was under the applicable age of consent at the time of the alleged assault, consent is not a viable defense.
- Wrong person – this is often used when the attack was by a stranger and you were identified by a lineup or photo array.
- Conduct never occurred – this is the proverbial “he said” – “she said” which only works when there is no relevant physical evidence of the assault.
- Victim motivation – sadly, allegations of sexual assault are sometimes made by a jealous or spurned girlfriend/boyfriend.
- Evidence – sometimes the best defense is simply to point out that the state’s case lacks any credible evidence or to focus on evidentiary problems.
5. Will I be required to register as a sex offender if convicted of sexual assault?
Yes, you will be required to register with the Nebraska Sex Offender Registry (or the equivalent in another state) if you are convicted of sexual assault. The length of time you are required to be registered will depend on the level of offense for which you are convicted. You may be required to remain registered for 15 years, 25 years, or for life.
6. How does the State prove an allegation of sexual assault?
Sometimes an allegation of sexual assault boils down to the alleged victim’s testimony versus the defendant’s testimony. In that case, the jury must decide who to believe. In other cases, however, there may be physical evidence of the assault. If, for example, the alleged victim was taken to the hospital after the alleged attack, a rape kit would have been used to try and collect evidence of the assault.
7. Why did the court enter a “no contact” order in my case and what does it mean?
A “no contact” order is essentially exactly what it sounds like. It is a court order prohibiting you from having any contact with the alleged victim in your case. It does not matter if the alleged victim is a spouse/partner nor does it matter that the alleged victim actually wants contact with you. Once the court enters the order you must abide by it or risk being charged with an additional offense.
8. Why do I need to hire a criminal defense attorney if I am not guilty of sexual assault?
It is often the defendants who are not guilty who need an attorney the most. Our criminal justice system operates on the presumption of innocence; however, guilt is often decided by average people who don’t always understand the law. The end result is that innocent people are sometimes convicted of horrible crimes. Don’t take the chance of that happening to you. If you have been accused of sexual assault, you need to consult with an experienced Nebraska criminal defense attorney right away.
If you have been charged with sexual assault in the State of Nebraskacontact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
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Petersen Criminal Law Defense Nebraska Firearms Crimes FAQ
The United States is relatively unique throughout the world with regard to our relationship with firearms. Many Americans strongly believe in, and protect, their “right to bear arms.” Likewise, many Americans purchase, carry, and use firearms responsibly and legally. Conversely, the number of murders committed with a firearm in the U.S. is about 30 times those committed in the United Kingdom. Moreover, 60 percent of all murders in the U.S. are committed with a firearm, compared to 30 percent in Canada, 18 percent in Australia, and just 10 percent in the U.K. It should come as no surprise, therefore, that firearms are heavily regulated in the U.S.
Whether you have been arrested and charged with a firearms law violation, or you just want to avoid violating the law, you need to understand Nebraska’s firearms laws if you live in the state. To help you, we have prepared some answers to the most frequently asked questions relating to firearms laws and crimes in the State of Nebraska. If you have additional questions or concerns regarding a particular law or your specific situation , please feel free to contact the criminal defense attorneys at Petersen Criminal Defense Law.
1. Does the U.S. Constitution and/or the Nebraska Constitution protect my right to purchase and/or possess a firearm?
Yes…to an extent. The 2nd Amendment to the U.S. Constitution reads, in pertinent part “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Furthermore, Article I, sec. 1, of the Nebraska Constitution guarantees the right to keep and bear arms “for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes.” While both state and federal law provide a fundamental right to possess firearms, the right is far from absolute.
2. Are antique firearms included in Nebraska’s gun laws?
No. Antique handguns and pistols are exempt from Nebraska’s firearms laws. An antique handgun or pistol is one that was made prior to 1898 or that is a replica of an antique that cannot fire modern ammunition.
3. Do you need a license to sell firearms?
You need a federal firearms license to be considered a dealer for profit; however, you do not need a license to make an occasional sale or to sell a collection of firearms. Unfortunately, there is not a bright line between someone who buys and sells firearms for a hobby and a dealer. If you regularly sell firearms for a profit, however, you may need to apply for a federal license.
4. Does Nebraska use the federal NICS background check system?
Nebraska uses a mix of the federal National Instant Criminal Background Check (NICS) for long guns and its own background check system for handguns.
5. What is required to purchase a handgun in Nebraska?
Purchasing a handgun in Nebraska is actually rather complicated compared to other states. First, you must pay a fee and apply for a certificate of purchase from the local sheriff or chief of police. A background check is then run on you. If the background check comes back clean you will be given a certificate that can be used to purchase a handgun. The only commonly used exception to the certificate requirement is if you already have a concealed carry permit.
6. Does Nebraska offer a concealed carry permit?
Yes. In Nebraska, a concealed handgun means no part of the firearm remains in view. To qualify for a concealed carry permit, an applicant must:
- Be at least 21 years of age;
- Not be prohibited from purchasing or possessing a handgun by 18 U.S.C. 922, as that section existed on January 1, 2005;
- Have eyesight sufficient to possess a Class O operator’s license;
- Not have been convicted of a felony under Nebraska or any other jurisdiction;
- Not have been convicted of a misdemeanor crime of violence in the past 10 years;
- Not have been found in the previous 10 years to be a mentally ill and dangerous person under the Nebraska Mental Health Commitment Act or a similar law of another jurisdiction or not be currently adjudged mentally incompetent;
- Have been a Nebraska resident for at least 180 days
- Not have had a conviction of any law of Nebraska or other jurisdiction relating to firearms, unlawful use of a weapon, or controlled substances within 10 years preceding the date of application;
- Not be on parole, probation, or work release; and
- Provide proof of training
7. Can a firearm be used as self-defense?
Nebraska allows the use of force, including deadly force, to protect oneself, another, or one’s property. Force is justified if you reasonably believe it is immediately necessary to defend yourself against unlawful force by another. Deadly force is justified if an individual believes it necessary to protect himself or herself or another against death, serious bodily harm, kidnapping, or sexual assault.
8. What impact does possession of a firearm during the commission of other crimes have?
Typically, possession of a firearm makes the commission of a crime worse in the eyes of the law. For example, possession of a firearm while violating Nebraska’s controlled substance laws subjects you to being punished by the next higher penalty classification. In addition, using a firearm to commit a felony is a Class IC felony itself and possessing a firearm during the commission of a felony is a Class II felony.
9. What are the penalties for carrying a concealed firearm without a permit?
Carrying a concealed weapon without a permit in Nebraska is a Class I misdemeanor for the first offense and a Class IV felony for each subsequent offense.
10. What are the penalties for possession of a prohibited firearm, such as a machine gun?
Possession of prohibited firearms, such as a machine gun, short rifle, or short shotgun, is a Class IV felony in Nebraska.
If you have been charged with a violation of one of the state’s firearm laws, or with a crime involving a firearm in the State of Nebraska,contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070 to discuss your case with an experienced criminal defense attorney.
Petersen Criminal Defense Law – Frequently Asked Questions – Assault Charges
For most people, being accused of any criminal offense is a frightening and confusing experience. It can be particularly distressing to be accused of a crime if it is a serious offense and you have no previous experience with the criminal justice system. Assault charges, for example, are usually serious in nature and could lead to a lengthy period of incarceration if convicted. Only an experienced Nebraska criminal defense attorney can answer specific questions about your case after reviewing the charges and evidence the State has against you. At Petersen Criminal Defense Law, however, we understand that finding answers to some of your questions may help you feel more in charge of your defense – and your future. With that in mind, we have prepared several answers to questions involving assault charges which we are frequently asked by clients. If you have additional question or would like to discuss your legal options, feel free to contact our office anytime.
1. How is assault defined in Nebraska?
In the State of Nebraska, assault can be charged in the first, second, or third degree as follows:
- Assault in the first degree is defined as “intentionally or knowingly causes serious bodily injury to another person” and is charged as a Class II felony. Serious bodily injury is defined as “bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.”
- Assault in the second degree is charged as a Class IIA felony and is defined as any of the following:
- Intentionally or knowingly causes bodily injury to another person with a dangerous instrument;
- Recklessly causes serious bodily injury to another person with a dangerous instrument; or
- Unlawfully strikes or wounds another (i) while legally confined in a jail or an adult correctional or penal institution, (ii) while otherwise in legal custody of the Department of Correctional Services, or (iii) while committed as a dangerous sex offender under the Sex Offender Commitment Act.
- Assault in the third degree is charged as a Class I or Class II misdemeanor and is defined as either of the following:
- Intentionally, knowingly, or recklessly causes bodily injury to another person; or
- Threatens another in a menacing manner.
2. What are the potential penalties for assault?
If you are convicted of assault in Nebraska, the potential penalties you face will depend on whether you are convicted of first, second, or third degree assault. First degree assault carries a potential term of imprisonment of 1-50 years while second degree assault carries up to 20 years in prison if convicted. Third degree assault could result in up to one year in jail if convicted of a Class I misdemeanor or up to six months for a Class II misdemeanor and/or up to a $1,000 fine for both.
What is sexual assault in Nebraska?
Sexual assault can also be charged in the first, second, or third degree and is defined as follows:
- First degree sexual assault, charged as a Class II felony, includes any person who subjects another person to sexual penetration:
- without the consent of the victim OR
- who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct OR
- when the actor is nineteen years of age or older and the victim is at least twelve but less than sixteen years of age is guilty of sexual assault in the first degree.
- Second and third degree sexual assault can be charged as a Class IIA felony if the alleged victim suffered serious personal injury or as a Class I misdemeanor absent injury. Second and third degree sexual assault are defined as follows:
- Any person who subjects another person to sexual contact:
- without consent of the victim OR
- who knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct.
- Any person who subjects another person to sexual contact:
4. What are the potential penalties for sexual assault?
The penalties for sexual assault mirror those for simple assault and are also based on the level of the offense of which you are convicted.
5. What is domestic assault in Nebraska?
Like both simple and sexual assault, domestic assault can also be charged in the first, second, or third degree.
- Domestic assault in the third degree includes the following conduct:
- Intentionally and knowingly causes bodily injury to his or her intimate partner OR
- Threatens an intimate partner with imminent bodily injury OR
- Threatens an intimate partner in a menacing manner.
- Domestic assault in the second degree occurs if the defendant “intentionally and knowingly causes bodily injury to his or her intimate partner with a dangerous instrument.”
- Domestic assault in the first degree requires the defendant to “intentionally and knowingly causes serious bodily injury to his or her intimate partner.”
6. What are the potential penalties for domestic assault?
The potential penalties for domestic assault depend on the severity level of the charge as well as the existence of previous domestic violence convictions, if applicable. Penalties can range from a maximum of six months in jail and/or a $1000 fine to 50 years in prison.
7. What if my spouse/partner doesn’t want to press charges?
A common misconception is that the alleged victim decides whether or not to prosecute an accusation of domestic assault. The State of Nebraska, through the prosecuting attorney, however, makes that decision. While the prosecuting attorney may take into account an alleged victim’s position or refusal to cooperate, the prosecutor ultimately makes the decision to prosecute or dismiss charges.
8. How is self-defense defined and when can it be used as a defense in an assault case in Nebraska?
Self-defense is an affirmative defense, meaning you admit to the conduct charged by the State but you claim your conduct was legally justified. If charged with assault, for example, you admit to the conduct that led to the assault charge, but you claim the conduct was legal in your case because it was self-defense. Nebraska allows the use of self-defense “if a reasonable ground existed under the circumstances for the defendant’s belief that he or she was threatened with death or serious bodily harm.”
If you have been charged with a criminal offense in the State of Nebraska, it is certainly in your best interest to consult with an experienced criminal defense attorney right away to discuss what defenses might be available to you. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070.
Nebraska Marijuana Laws
Almost a century ago, the United States federal government waged war on marijuana. Prior to that time, marijuana was legal in the United States. Eventually, marijuana was classified as a Schedule I controlled substance by the U.S. federal government, putting it in the same class as drugs such as heroin and methamphetamine. As far as the U.S. federal government is concerned, marijuana remains a Schedule I controlled substance and the possession, cultivation, distribution or trafficking of marijuana remains a violation of federal law. In recent years, however, a number of states have passed laws legalizing the medicinal and/or recreational use of marijuana. Other states have decriminalized possession of a small amount of the substance.
Giving Nebraska’s proximity to the state of Colorado, which has legalized the use of both medicinal and recreation marijuana, it should be no surprise that people are often confused about what the marijuana laws are in the state of Nebraska. The criminal defense attorneys at Petersen Criminal Defense have provided answers to some of the most frequently asked question about Nebraska’s marijuana laws. If you have specific questions about a criminal case in which you are involved, please contact our office anytime, day or night.
1. Has Nebraska legalized either medicinal or recreational use of marijuana?
No. Although over half of the states in the U.S. have passed legislation legalizing the use of marijuana in some form over the last decade or so, Nebraska is not one of them. There is, however, a bill (Legislative Bill 622) currently (as of April, 2017) under consideration in Nebraska’s unicameral which would legalize the medical use of marijuana for 19 different medical conditions. For now, however, the possession and/or use of marijuana for any reason remains illegal in Nebraska.
2. Is it a crime to have a small amount of marijuana on me?
Yes. It remains a crime to be in possession of any amount of marijuana in the state of Nebraska. The potential penalties for possession of less than one ounce of marijuana are as follows:
- For the first offense, be guilty of an infraction, receive a citation, be fined three hundred dollars, and be assigned to attend a course as prescribed in section 29-433 if the judge determines that attending such course is in the best interest of the individual defendant;
- For the second offense, be guilty of a Class IV misdemeanor, receive a citation, and be fined four hundred dollars and may be imprisoned not to exceed five days; and
- For the third and all subsequent offenses, be guilty of a Class IIIA misdemeanor, receive a citation, be fined five hundred dollars and be imprisoned not to exceed seven days.
- Any person convicted of violating this section, if placed on probation, shall, as a condition of probation, satisfactorily attend and complete appropriate treatment and counseling on drug abuse provided by a program authorized under the Nebraska Behavioral Health Services Act or other licensed drug treatment facility.
3. What are the penalties for dealing marijuana in Nebraska?
While the potential penalties for possession of marijuana are not particularly harsh in Nebraska, the penalties for dealing or selling a large amount of marijuana can be serious. The sale of marijuana is a felony in Nebraska that carries with it anywhere from one to 20 years in prison if convicted. Aggravating circumstances, such as selling to a minor, can increase the potential penalties as well.
4. Do I need a lawyer if the marijuana the police officer found in the car was not mine?
One of the most common scenarios leading to an arrest is where a police officer conducts a traffic stop of a vehicle with several passengers inside. A search of the vehicle turns up marijuana. The police officer might arrest one person, or everyone based on a constructive possessiontheory. If you are facing marijuana charges involving constructive possession, an experienced Nebraska criminal defense attorney may be able to use that as a defense if the basis for claiming the marijuana is yours is weak from a legal perspective.
5. Can I be charged for driving under the influence of marijuana?
People typically assume “driving under the influence” refers to driving under the influence of alcohol. Most of the time, it does; however, what people may not realize is that it is also illegal in Nebraska (and in most other states) to operate a motor vehicle while under the influence of drugs, including marijuana. Unlike driving under the influence of alcohol, however, proving a charge of driving under the influence of drugs (DUID) is not as simple as providing the results of a chemical test showing the driver has a certain percentage of the drug in his/her system. Instead, the prosecutor is forced to prove first that you ingested/consumed/used a controlled substance and then, that the controlled substance caused you to be “under the influence.” With neighboring states legalizing the use of marijuana, it is becoming more difficult to determine exactly what constitutes DUID if the “drug” in question is marijuana.
If you have been charged with a violation of a marijuana-related criminal offense in the state of Nebraska it is certainly in your best interest to consult with an experienced criminal defense attorney right away to discuss what defenses might be available to you. In Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070.
Drug Delivery and Possession FAQs
Being arrested and charged with any criminal offense is usually a frightening ordeal. If you have been charged with possession or delivery of a controlled substance, it can be even more frightening given the harsh penalties frequently imposed for a conviction in a drug-related offense. If you are facing drug charges in the state of Nebraska it is in your best interest to consult with an experienced criminal defense attorney as soon as possible. Because we understand what you are going through, however, the attorneys at Petersen Criminal Defense Law have prepared answers to several frequently asked questions relating to drug delivery and possession charges. If you have specific questions about your situation, please feel free to contact our office directly.
1. What are the penalties if I am convicted of possession of a controlled substance in Nebraska?
Although many states in the United States have recently legalized medical marijuana or even recreational marijuana, the state of Nebraska is not one of them. Therefore, the possession of any controlled substance, even marijuana, remains illegal in Nebraska. The penalties for a conviction for the possession of small quantities of marijuana, however, are less severe than those for the possession of other types of controlled substances. The type of controlled substance is just one of the factors that will determine what penalties you face if convicted of possession of a controlled substance in Nebraska.
2. What are the penalties for drug trafficking or delivery of a controlled substance in Nebraska?
As you may well imagine, the penalties for criminal offenses involving trafficking or the delivery of a controlled substance are considerably more harsh than those for possession alone. In fact, you could face up to life in prison for a violation of Nebraska’s controlled substance laws for delivery or trafficking drugs. There are, however, a number of potential defenses you may have available to you if you are facing charges for delivery or trafficking drugs.
3. Can I be convicted of a crime if I have a prescription for the drugs of which I was found to be in possession?
People are often under the mistaken impression that having a prescription for a controlled substance means they could never be convicted of possession of that controlled substance. The truth, however, is that under certain circumstances you could be convicted of possession of a controlled substance even though you have a prescription for the same, or similar, substance. If you have been charged with possession of a prescription drug do not assume you cannot be convicted because you have a prescription. You need to consult a defense attorney right away to ensure your rights are protected.
4. What are some of the factors which might impact my sentence if I am convicted of a drug offense?
Of course, the goal of any criminal defense attorney is to avoid a conviction; however, sometimes a conviction is inevitable. When this occurs, your attorney will then switch the focus to sentencing. If your conviction is part of a guilty plea agreement with the State of Nebraska, you will know ahead of time (in most cases) what your sentence will be. If not, a judge will determine your sentence after both the prosecuting attorney and your attorney make arguments at a sentencing hearing. The judge may consider both aggravating and mitigating factors. Aggravating factors are things that make your particular situation worse than that of other similarly-situated defendants. Mitigating factors are things that make your situation better than that of other similarly-situated defendants. Examples of aggravating factors include things such as the presence of a weapon during the commission of the crime or previous convictions, whereas examples of mitigating factors might include absence of previous convictions or cooperating with authorities.
5. What is constructive possession?
If you are charged with possession of a controlled substance, the charge may be based on actual or “constructive” possession. Actual possession occurs when you had physical control over the contraband. Constructive possession, on the other hand, refers to a situation wherein you did not have actual physical possession of the contraband but the police believe the contraband located belonged to you. As you may well imagine, it is more difficult for the prosecutor to prove constructive possession than to prove actual possession. Consequently, you may have a good defense if your charges are based on constructive possession.
6. Will I go back to jail for a drug offense if convicted?
Understandably, one of the most common concerns people have when they are facing charges for possession, delivery or trafficking of a controlled substance is whether they will end up back in jail. Whether or not you end up being sentenced to additional time in jail or prison will depend on a myriad of factors, starting with whether or not you are convicted of the charges against you. Even if you are convicted, an experienced criminal defense attorney may be able to keep you from being sentenced to a term of imprisonment. The most important thing you can do to increase the likelihood of staying out of jail is to retain the services of an experienced drug defense attorney as early on in the prosecution of your case as possible.
7. What should I do if I was arrested on drug charges?
Unless you have been arrested for drug-related offenses in the past, finding yourself sitting in jail facing a drug charge can be a frightening, and confusing, experience. The good news is there are several steps you can take to ensure your rights are protected and potentially aid in your defense. The most important of those steps is contacting an experienced Nebraska criminal defense attorney as soon as possible.
If you have been charged with a drug-related criminal offense in the state of Nebraska it is certainly in your best interest to consult with an experienced criminal defense attorney right away to discuss what defenses might be available to you. In Nebraska, contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070.
Interstate 80 Traffic Stop FAQs
Over the last several years, a number of states across the country, including Colorado, have made significant changes to their marijuana laws. In fact, Colorado has been a pioneer in the “re-legalization of marijuana” movement. Not only has Colorado legalized medical marijuana, but the recreational use of marijuana is also now legal there. Even before those laws were changed, the I-80 corridor was a known route for marijuana making its way from Mexico to the northern United States. With the changes to Colorado’s marijuana laws, law enforcement agencies throughout Nebraska have increased their efforts to apprehend marijuana moving through the state. Consequently, anyone traveling along Interstate 80 is at an increased risk of being stopped. If you travel I-80 on a regular basis, you need to know your rights in case you are stopped. With that in mind, the Nebraska criminal defense attorneys at Petersen Criminal Defense Law created the following frequently asked questions and answers relating to an I-80 traffic stop:
1. Are the police targeting out-of-state drivers along I-80?
You may have heard that Nebraska law enforcement agencies are targeting out-of-state license plates in their enforcement efforts and wondered if this is just a myth. It is actually true. A number of studies and news articles have confirmed that police agencies across the state, but particularly along the border with Colorado, are looking for out-of-state vehicles along I-80. Once they locate one, they often wait for the driver to commit a minor traffic infraction, such as failing to signal a lane change, and then effectuate a traffic stop.
2. Do I have to pull over if the vehicle is not a marked police vehicle?
Unfortunately, predators sometimes pose as police officers. If you look in your rearview mirror and see what appears to be an unmarked police vehicle, you are not required to pull over right away if something appears off or makes you question if it is really a police officer. Do not pull over if you are in a dark and desolate area at night. Drive to a well-lit area, preferably where there are plenty of people. While looking for a good place to stop, slow your vehicle down and use your cell phone to call 9-1-1. Explain to the operator your concern and ask him/her to verify whether it is a legitimate peace officer behind you. Follow the operator’s instructions from that point.
3. Can the police randomly stop me or do they have to have a reason?
No, the police cannot randomly stop you. A police officer must have a valid, legal reason to conduct a traffic stop. That reason, however, could be something as simple as a missing license plate light, failing to signal a lane change, or traveling too close to the vehicle in front of you.
4. What is a “ruse checkpoint”?
This is a common tactic along I-80 in Nebraska. The police set up signs indicating there is a random “drug checkpoint” There will then be an exit shortly after the sign. The police wait at the bottom of the exit to see who gets off the interstate, assuming that the driver is concerned about the checkpoint. They follow the drivers until a minor traffic violation is committed which gives them cause to conduct a traffic stop. Of course, the stop is simply an excuse to really check for the presence of drugs in the vehicle.
5. Once stopped, do I have to answer questions?
You are required to give the police your basic information for identification purposes only. Beyond that, your right to remain silent kicks in when you are stopped. In other words, you are not legally required to answer any questions.
6. How long can the police detain me?
Until very recently, law enforcement officers would routinely prolong a traffic stop as long as possible waiting for a K-9 unit to arrive so they could conduct a “dog sniff” (search). A recent opinion handed down by the Supreme Court, however, warns police against this policy. According to the opinion, a police officer “may conduct certain unrelated checks during an otherwise lawful traffic stop,” but “may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”
7. Should I consent to a search?
Never consent to a search of your vehicle, person or home. The police may conduct the search anyway, but if they cannot justify the search using one of the allowable exceptions to the warrant requirement, your defense attorney can get the search declared illegal and any evidence found as a result of the search declared inadmissible. If you consent to the search, however, your attorney cannot help you with regard to the search.
8. What can I do to avoid being stopped?
Although there are never any guarantees, there are some things you can do to decrease the likelihood of being stopped while driving along I-80, or anywhere else in the state of Nebraska, including:
- If you recently moved to Nebraska, register your vehicle and get Nebraska plates
- Obey the traffic rules
- Avoid I-80 whenever possible
- Don’t fall for a ruse checkpoint – remain on the interstate instead of exiting
- Try to avoid driving at night when there are fewer vehicles for the police to focus on in their enforcement efforts.
If you were the victim of a traffic stop along I-80 in the state of Nebraska, and were subsequently arrested and/or harassed by the police, it is certainly in your best interest to consult with an experienced criminal defense attorney right away to discuss your legal rights and/or defenses. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070.
If you are a defendant in a criminal prosecution, your number one goal is to avoid a conviction. Sometimes, however, that goal cannot be achieved. When that is the case, your focus, and that of your attorney, shifts to the sentence you will receive as a result of that conviction. If you have never been sentenced for a criminal offense, you likely have a number of questions and concerns about both the sentencing procedure and how the terms of a sentence are decided. To help you feel a little more prepared, the Nebraska criminal defense attorneys at Petersen Criminal Defense Law created the following frequently asked questions and answers relating to sentencing.
1. What is minimum mandatory sentencing in Nebraska?
The concept of minimum mandatory sentences evolved as a response to disparity in sentencing and public outcry against lenient sentencing. As you may imagine, a minimum mandatory sentence requires a defendant to be sentenced to a minimum amount of time in jail or prison. The defendant may receive a longer sentence than the minimum prescribed by statute, but not a shorter
2. What are the Federal Sentencing Guidelines?
If you are convicted of a federal crime you will be sentenced in federal court using the Federal Sentencing Guidelines. The guidelines are considered to be advisory only; however, in practice most courts use the guidelines to determine a sentence and only deviate from them with good cause. The guidelines use the “level” of the crime along with a defendant’s criminal history to arrive at a sentence recommendation.
3. What are mitigating circumstances?
In deciding the terms of a sentence, a judge may consider mitigating and/or aggravating circumstances. Mitigating circumstances include facts about the crime and/or the defendant that call for a more lenient sentence. Examples of mitigating factors include:
- Lack of previous criminal history
- Acceptance of responsibility
- Victim of childhood or spousal abuse
4. What are aggravating circumstances?
Just as the court may consider mitigating factors that argue for leniency in sentencing, so may the court consider aggravating factors that argue for a harsher sentence. Common examples of aggravating factors include:
- Previous convictions
- Injury to a victim
- Presence of a weapon during the commission of the crime
5. What are sentencing enhancements?
A sentence enhancement is a bit different than an aggravator. An enhancement actually allows the prosecutor to charge you with a more serious crime and/or increase the severity level of the crime with which you are charged. For example, if you had a weapon with you during the commission of a criminal offense, the presence of that weapon might allow the State to charge you with a more serious crime or with a higher level felony.
6. What happens at a sentencing hearing?
Sentencing may occur under more than one set of conditions. The first is pursuant to a guilty plea agreement reached by the State and the defendant. The second is immediately after a trial. The last is at a sentencing hearing following a guilty verdict at trial. Typically, a sentencing hearing is required when the defendant has been convicted of a felony offense. Given the potential for incarceration when the defendant has been convicted of a felony, the court usually orders a pre-sentence investigation to be conducted by the probation department which is one reason the hearing does not occur immediately after the conviction. At the hearing, both the State and the defendant are allowed to present evidence and question witnesses in an effort to influence the sentence handed down by the court. The judge will consider that evidence and testimony, along with the results of the pre-sentence investigation, when deciding on the defendant’s sentence.
7. If my attorney negotiates a guilty plea agreement for me, will I know my sentence ahead of time?
When a defendant admits guilt to his/her attorney, and the State’s evidence of guilt is strong, it is often best for the attorney to focus his/her efforts on negotiating the most favorable guilty plea agreement One advantage to accepting a guilty plea is knowing the sentence you will receive ahead of time. In most plea agreements, the terms of the sentence are specific. Sometimes, however, a plea agreement includes an “open” term, meaning the judge will decide that term. For example, the length of incarceration might be left open, but capped at a specific number of years. In addition, keep in mind that although the prosecution and defense may agree to all terms in a guilty plea agreement, the judge must ultimately accept the agreement.
8. If I plan to plead guilty, do I still need a criminal defense attorney?
Although a criminal defense attorney’s primary goal is to help you avoid a conviction, sometimes that is impossible. In that case, an attorney turns his/her focus to sentencing. Having an attorney on your side, even if you plan to plead guilty, is invaluable because it greatly increases the likelihood of a more lenient sentence.
If you have been charged with a criminal offense in the state of Nebraska, it is certainly in your best interest to consult with an experienced criminal defense attorney right away to discuss your legal rights and/or defenses. In Nebraska contact Petersen Criminal Defense Law 24 hours a day at 402-509-8070.