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How does a San Diego prosecutor make the decision to file charges?

On Behalf of | Jan 31, 2014 | Firm News |

Often clients believe the charges that are listed on the citation or what they were booked on is what they will be facing in court.  The initial charges may increase, decrease, or totally change by the time of the first court date.  Depending on the case, it may reach the prosecution anywhere from three days to three weeks.  A proactive attorney can use this time to begin working on the case and obtaining evidence for a favorable resolution.  I spent almost 10 years as a prosecutor and have filed/issued thousands of cases.  I have been a member of the San Diego issuing unit and can tell you this is a vital time for defense to take advantage of.  

Several prosecutor agencies have issuing units.  This group of attorneys is charged with the responsibility of screening and reviewing more than 3,500 requests from criminal complaints each month from several different law enforcement agencies. The unit is responsible for handling these cases through the arraignment process. Some crimes have a vertical prosecutor, meaning the attorney who is making the decision on filing charges is the one taking it all the way to jury trial.  In most cases (and especially San Diego DUIs) the case will be reviewed by a standard issuing deputy. 

The Process

After an arrest takes place, the arrest report is sent to the prosecutor. Police officers usually make arrests only if they believe they have good reason (probable cause) to believe a crime has been committed. By contrast, prosecutors can file charges against the arrested individual(s) only if they believe that they can prove a suspect guilty beyond a reasonable doubt to a judge or jury.

The prosecutor’s job it is to initiate and prosecute criminal cases. They look at all the circumstances of a case, including the suspect’s past criminal record, when deciding whether they will file charges and which charges to file. Typically, prosecutors base their initial charging decisions on the documents sent to them by the arresting police officers. 

People who are arrested sometimes claim that the arrest reports contain false or one-sided information. They generally recite only what the police decide to include and may include only witness statements that support the officers’ theories. While they are generally not admissible as evidence in a trial, arrest reports can have a major impact in criminal cases.  Again, this is why an attorney has to be proactive and get evidence to the prosecutor.  The evidence may give some context to the issuing deputy.  The result is the prosecutor may not issue the case or the prosecutor has given better terms because the case isn’t so great.

Once the prosecutor has reviewed the reports, he/she will either:

  • decide that the case should be charged, and file a complaint (file charges)


  • decide not to file charges at all.

For suspects who are in custody, California speedy trial laws require prosecutors to file charges, if at all, within 72 hours. For those that are bailed out of jail before the prosecutor makes a decision, the statue of limitations to file charges generally equal the maximum jail term penalty of the crime being suggested. For example, If someone was arrested for a misdemeanor, who’s maximum jail sentence would be one (1) year, the statute is generally one (1) year. For someone who is facing charges for murder and the maximum sentence is life…the statute would generally not expire.

Prosecutors’ initial charges are subject to change. For example, in a felony case a prosecutor may not make a final decision on what charges to file until after a preliminary hearing.

Some aspects that may influence a prosecutor’s decision to file charges include:

What justice requires:

Some decisions are made based on what the prosecutor believes “justice requires.” Doing justice means that a prosecutor must occasionally not prosecute someone (or file lesser charges against them) because of the interest of justice (wasting court time, saving money, the law abiding citizen made a simple mistake, etc…)

Informal policies:

Often in response to community pressure, some policies are informally implemented on certain crimes. For example, due to a recent DUI injury on I-8 that made the news, the prosecution may hesitate to “plea bargain” a weak San Diego DUI down to a lesser offense.

Political pressure:

Prosecutors may also be influenced by their own ambitions for public office. Most prosecutors are elected officials. Many of which, view their position as a step towards higher office. Other prosecutors have ambition of moving up in their office to higher status positions.  Their charging decisions are often, therefore, affected by public opinion or important support groups.  A prosecutor wears usually one of two hats…..either you are known as being hard or you are fair.  Some prosecutors relish the fact they are hard core and give no quarter.  Some cases deserve this mentality, while a great many do not.  Some of these prosecutors are the same ones that take a case that should of been dismissed or resolved with a lesser offer and charge up the hill only to be gunned down by not guilty bullets from a jury.

It is important to obtain a private lawyer as soon as possible after arrest. This way, your attorney can immediately make contact with the prosecuting agency. An experienced defense attorney will have a relationship with the Prosecutor and may be able to convince them not to file charges or to file lesser charges.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a San Diego DUI, Poway DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Carmel Valley DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected]

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