What if You Are
Arrested!
 IF YOU'VE BEEN
ARRESTED:
Call an experienced criminal defense attorney immediately. The
attorney can advise you of your rights while in police custody and
help protect you from hurting your chances in court. He can prepare
for and appear at your arraignment, arguing against the
prosecutor's request for the judge to set bail. He can thoroughly
investigate your case and interview witnesses who may help you.
Ultimately, he can challenge the evidence against you in court
proceedings such as suppression hearings and trial.
Being arrested means that you are taken into custody and not
free to go. You can also be legally detained for a short period
of time for questioning if you are suspected of being involved in a
crime.
If you are arrested or detained you do not have to answer questions
except to give your name and address and show identification if
asked. However, if you do answer questions you must tell the truth
as knowingly giving false information to a police officer is a
crime.
POLICE OR CITIZEN
ARRESTS
Anyone can arrest an individual for a misdemeanor if that
person actually sees the misdemeanor occur. This rule
applies to private citizens as well as police
officials. However, private citizens and law enforcement
officers are allowed to arrest suspects for felony offenses even if
they did not see the suspect commit the felony, if they have good
reason to believe that the suspect committed the felony.
ARREST
WARRANTS
Normally, an arrest warrant is
necessary before a person can be arrested at their residence.
However, if exigent circumstances exist where immediate action is
necessary to prevent a suspect from hurting someone, escaping,
destroying evidence or damaging property, then a warrant is not
required.
An arrest warrant must be signed by a judge or magistrate that has
been supplied sufficient facts to reasonably believe that the
person named in the warrant committed the crime. If a warrant is issued, a
law enforcement officer may arrest you even if he or she does not
have a copy of the warrant. However, before entering your
residence, law enforcement officers must knock and identify
themselves and state that you are to be arrested. If you then
refuse to allow the official in, forcible entry is allowed.
If the officer has a warrant, you
are allowed to see it and if they don’t have a copy, they are
required to show you a copy as soon as practical.
If you are arrested with an arrest
warrant or otherwise, an immediate search of the area around you
may be searched for weapons. If you are outside then your auto or
house may not be searched without a search warrant. Resisting a
legal arrest, even if you are innocent, is a crime.
IF THE POLICE ARE LOOKING FOR
YOU:
If the police are calling your home asking to speak with you, you
may be a suspect in a criminal investigation. Quite often, the
detective will seek to question you on the telephone about the
incident, and then ask you to come voluntarily to the
station house to "straighten things out." If you go to the
station house, you will probably be asked to talk further about the
case. Ultimately, you will be asked to sign a statement giving
"your side of the story" (but usually written or typed by the
detective). While this might seem like a good opportunity to get
out of trouble, this is not a good idea. The
statement will generally be constructed to include an admission of
some guilt in the matter. The best thing you can do if the
police come to your home or call for you on the telephone is to
answer no questions and call an experienced defense attorney
immediately.
The police can sometimes arrest you even without
your statement. For example, if the police are in possession of an
active arrest
warrant or a bench warrant (a warrant issued for failure to
appear in court), they will come looking for you. If they do not
believe you are a flight risk, they may call you by telephone and
try to arrange a voluntary surrender. Another example is
where the police believe that they already have enough evidence
against you to constitute "probable cause" (although no
warrant has been signed). Since your arrest may be unavoidable
under these circumstances, it may be wise to voluntarily surrender
rather than force the police to find and capture you. Of course, it
is crucial that you do not make any statements to the police
or answer their questions, and that you quickly obtain legal
counsel. An attorney can negotiate the terms of your
voluntary surrender in a manner which can minimize your
time in police or court custody. A person who voluntarily
surrenders on a warrant is always looked upon more
favorably by an arraignment judge during a bail application.
The manner in which a lawyer handles the arrest and arraignment
process in these situations can mean the difference between a
release in one's own custody and the setting of a high and
unaffordable bail.
IF YOU ARE IN POLICE
CUSTODY:
In Miranda v. Arizona, the United States Supreme
Court held that prior to any questioning of a person in custody,
the police must advise the person of certain rights. These rights,
commonly called the Miranda Rights, are now generally as
follows:
 You
have the right to remain silent.
Anything
you say may be used against you.
You have
a right to have a lawyer present while you are questioned.
If you
cannot afford a lawyer, one will be appointed for you.
The police will often read these rights off a preprinted
card. They will read you these rights only if they intend to
question you. After reading them to you, they will question you
in an effort to get you to incriminate yourself. They will
write down your statements, and often ask you to sign a written
version. Answering questions but refusing to sign a written
statement doesn't help you. Oral confessions can be just
as damaging as signed written ones. Answer no questions
until you have spoken with an attorney.
What if the police neglect to read you your rights? It could
result in a major blow to the case against you. Even a
full written confession to the crime can be thrown out of
court. And if the confession led the police to further
evidence against you, that evidence could be thrown out as
well. Keep in mind however, although evidence is thrown out,
the case itself is not necessarily dismissed. If there is
other evidence of your guilt, that other evidence could still be
used to prosecute you. Also, remember that Miranda is
limited to custodial interrogation. If you are not in
police custody, such as in conversation on the street or over the
telephone, the police can generally question you without reading
your rights. And if you are in custody, but spontaneously volunteer statements (not in
response to questioning), the police can write down your words and
use them against you in court.
IF YOU ARE STOPPED FOR DRUNK
DRIVING:
INFRACTION, MISDEMEANOR OR FELONY
In California and most other jurisdictions in the United States
crimes are placed into three different categories according
to the seriousness of the charge and punishment possible.
Infractions are minor offenses like traffic tickets. The
punishment can only be a fine and a loss of license or other
restrictions but no custody.
A misdemeanor is a more serious offense that normally
carries a possible jail sentence in county jail up to one year and
a substantial fine. Typical misdemeanor offenses are DUI and petty
theft. Normally, for a first offender misdemeanor probation is
granted and the defendant is not sentenced to jail but instead
placed on probation.
A felony is a serious offense which is punishable by a
sentence to state prison.
RELEASE FROM
CUSTODY
If you are arrested and then the police officer believes you are
innocent, you should be released and given a written document
stating that you were released. The arrest then is considered a
detention and not an official arrest and should not be recorded as
an arrest.
BAIL
You may be released from custody on your written promise to appear
in court at a specified date and time. If you willfully fail to
appear after signing to appear such act is a separate crime and an
arrest warrant is normally issued.
If taken into custody you have a right to have reasonable bail set.
Initially, the arresting authorities set bail and upon request the
arrested person may have bail reviewed by a judge or magistrate.
Generally, officers at jail can accept bail posted either by you or
by someone in your behalf. If you arrange bail through a bail
bondsman they normally charge a 10% of bail nonrefundable fee and
require collateral.
When you appear in court for your first hearing, the judge may
lower the bail or release you on your own
recognizance. In considering bail, by law you are presumed
guilty. The judge considers the seriousness of the charges, your
criminal record if any, and whether you have failed to appear in
court previously. Your ties and standing in the community are also
normally considered.
ARREST RECORDS
The State Department of Justice, local police department and
federal agencies keep arrest records. Generally, your arrest record
is available to other law enforcement agencies and certain
licensing agencies that have a right to investigate the criminal
record of individuals. In certain incidences, arrest records may be
expunged or modified. For example, in
California most misdemeanor convictions can be legally changed
after completion of probation to indicate a not guilty finding.
IF ARRESTED, HIRE AN
ATTORNEY
If a case is serious enough that you are arrested it means that
there is a possibility that you can be sentenced to jail. Most
misdemeanor cases carry a maximum sentence of six 6 months
to a year in jail. Felonies are punishable by a sentence in
state prison, with maximum sentences normally starting at
three years to life or capital punishment in a few charges. Thus,
if you can go to jail it is wise to hire an experienced criminal
defense lawyer to represent you. The fees vary depending upon the
seriousness of the charges and the resulting complexity of the
case
I offer a free no obligation consultation and look forward to
helping you with your legal matter.
This web site is
designed for general information only. The information presented at
this site should not be construed to be formal legal advice nor the
formation of a lawyer/client relationship. Persons accessing this
site are encouraged to seek independent counsel for advice
regarding their individual legal issues.
|