What If A Defendant Wants To Reschedule A Hearing?
The prosecutor's office does not have the power to reschedule a hearing. Only
the court can grant a continuance of a hearing. The court cannot do this until
the defendant makes a formal written request as discussed below.
A defendant who wants or needs to reschedule a hearing needs to make a formal
request to the court and provide a copy of that request to the prosecutor's
office. This request needs to be made in writing and be in the format required
by the Idaho Court Rules. To read the rule setting out the format requirements,
click on this link to Idaho Criminal Rule 12.
The prosecutor's office does not prepare or file a request with the court on
behalf of the defendant. This is solely the defendant's responsibility.
If a defendant contacts the prosecutor's office about continuing a hearing,
the prosecutor's office will listen to the reason the continuance is being
requested and give an opinion on whether the prosecution will object to or agree
to continue the hearing to another day. If the prosecutor states that the
prosecution does not object to rescheduling the hearing, that statement does not
guarantee the hearing will be continued and is not a substitute for making a
written request to the court and receiving an order from the court continuing
People often contact the clerk's office to request to reschedule a hearing.
The common practice of the court clerks in this situation is to refer the people
to the prosecutor's office. As indicated above, the prosecution does not have
the authority to continue a hearing. All the office staff can provide is some
direction to the defendant as to whether the prosecution will agree to or object
to the request to reschedule the hearing.
What If A Defendant Wants To Discuss The Case Before Their First Court
Appearance Or The Pretrial Conference?
Many defendants will contact the prosecutor's office immediately after they
receive a ticket or after their first court appearance to try to discuss the
case with the prosecutor. This is normally done in an attempt to avoid having to
appearing in court. In nearly all cases, practical considerations keep the
prosecution from resolving a case before a pretrial conference. These practical
considerations begin with the fact that the prosecutor's office cannot make an
appropriate decision on what to do with a case until all the information about
the case has been gathered. This usually takes until the week of the pretrial
conference to complete.
Two common misconception defendants have is that the prosecuting attorney's
office knows immediately when a citation has been issued and has access to the
information about the incident the day after the citation is issued. Law
enforcement agencies do not automatically provide a copy of a citation or a
police report to the prosecuting attorney's office. The prosecuting attorney's
office will not become aware that a citation has been issued until the court
provides notice to the prosecutor's office of a pretrial conference. This notice
does not arrive until after the defendant's first appearance in court.
Therefore, under normal circumstances, the process of gathering information
about a misdemeanor case does not even begin for the prosecutor's office until
after the defendant has made their first appearance in court and pled not guilty
to the offense. Without any information, the prosecutor handling the case is not
in a position to have a meaningful discussion with the defendant about the case.
Another consideration that makes it difficult for prosecutors to talk to
defendants in advance of the pretrial conferences is that the prosecutor and
secretary handling the misdemeanor case load have anywhere from 30 to 40 cases
per week set for a pretrial conference. Combined with other work assignments, it
is not realistic to expect that the prosecutor and the secretary assigned to the
case have the time available to obtain information about a case outside of the
normal protocol for gathering the information.
Although exceptions are made for certain types of emergencies, defendants
seeking to discuss their case before their pretrial conference will normally be
told that they will need to wait until their scheduled pretrial conference to
talk to the prosecutor. As indicated above, this is because the prosecutor is
without the information necessary to make an informed decision until immediately
before the pretrial conference and because of how disruptive it is to the
office's work routine to accommodate such requests.
What If A Defendant Wants To Appear At Court Before The Date On The Citation?
Defendant's should contact the clerk's office about their citation before
coming to the courthouse to enter a plea of guilty or not guilty to a citation.
Sometimes it can be a matter of a few days to as long as a couple of weeks
before the citation arrives at court from the officer. Therefore, if the
defendant comes to the courthouse they run the risk that there will be no
citation on file yet and the clerk will have no case to process the plea under.
The clerk will not take any action in such situation, but will likely inform the
defendant to check back later.
Why Won't The Prosecutor Talk Directly With A Defendant Who Is Represented By
The Idaho Rules of
Professional Conduct prohibit an attorney from discussing a case with a
party who is represented by an attorney. It is an ethical violation which can
result in sanctions, even revocation of the prosecutor's license to practice
law, if the prosecutor discusses the case with a defendant who he knows to be
represented by an attorney. The defendant's attorney can give consent for the
prosecution to talk to the defendant without the defense attorney present. This
occurs in very rare circumstances. The prosecuting attorney will usually decline
to talk to the defendant in such a situation unless the defense attorney's
consent is in writing.
What If A Defendant Cannot Get Their Attorney To Discuss The Case With Them?
Defendants will occasionally call the prosecutor's office to discuss the case
because they are not satisfied with the amount or quality of the conversations
they are having with their attorney. As indicated in the previous section, the
prosecutor cannot discuss the case with a defendant who is represented by
It is suggested that if the issue is one of the lawyer not returning phone
calls, that the defendant write a letter to the attorney about what it is the
defendant needs to know. This provides proof of the contact with the defense
attorney and may allow the attorney to ask a member of their staff to address
the concern because the attorney's schedule prevents them from responding in a
If writing a letter to the attorney does not work, it is suggested that the
defendant write a letter to the judge explaining the communication problem with
the attorney. Defendant's should not discuss specific items in the case,
strategy items, or make any incriminating remarks. Any statements the defendant
makes to the judge must be disclosed to the prosecution and can by used against
the defendant during any part of the case.
As a client, a defendant can also report the lawyer to the Idaho State Bar if
they believe one of the rules of professional conduct has been violated. This
will trigger an investigation into the incident by the Idaho State Bar's ethics
attorney. It is suggested that a defendant be assured that the attorney does not
have a reasonable and valid explanation for the lack of communication before
making such a referral.
Will A Conviction Affect A Defendant's Driver's License?
A defendant should read the criminal statute they have been cited with, and
associated statutes, to determine if the court is allowed or required to suspend
their driver's license. Idaho's criminal statutes can be researched by clicking
on the following link to Idaho Statutes.
If a person is concerned about points being assessed against their driving
record, they can can look up the points schedule by clicking on this link to the Idaho
Transportation Department web site.
What If The Defendant Actually Had Insurance, But Did Not Have Proof Of It To
Show The Officer?
Sometimes the defendant has proof of insurance, but cannot locate it to show
the officer. In such circumstances the law allows the defendant to present proof
of the insurance to the clerk office, who then is authorized to dismiss the
citation. The defendant must show proof that the car was insured at the time the
citation was issued. The fact that insurance was obtained after the citation is
not grounds for having the citation dismissed. However, the prosecutor's office
usually will take this into consideration during the pretrial conference, but
only if the defendant can provide proof that the car was insured in a timely
fashion after the issuance of the citation.
What If The Defendant Had A Driver's License, But Did Not Have Proof Of It To
Show The Officer?
Sometimes the defendant has a driver's license, but cannot locate it to show
the officer. In such circumstances the law allows the defendant to present their
driver's license to the clerk's office, who then is authorized to dismiss the
charge. The defendant must show a valid driver's license covering the period of
time during which the citation was issued. The fact that a new driver's license
was obtained after the citation is not grounds for having the citation
dismissed. However, the prosecutor's office usually will take this into
consideration during the pretrial conference, but only if the defendant provides
the new driver's license at the hearing.
How Does Someone Get A Restricted Driver's Permit?
The prosecutor's office is not involved in the issuance of restricted
driver's permits. If someone's license has been suspended by the court, they
need to contact the court to apply for a restricted driving permit. If the
person has been suspended by the the Idaho Department of Transportation, the
person needs to contact ITD to find out what can be done about driving
What If I Am A Victim Of The Offense?
If you are a victim of an offense you have certain rights. To learn more
about victim-related issues, please review the victim information provided on
this web site by clicking this link to our Victim
Services web page.