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Criminal Law FAQ's

WHAT SHOULD I DO IF I AM ARRESTED?

If you have been arrested that usually means you have been taken into custody and no free to leave. However, without being arrested you may be detained for a short period of time at the scene if shop owners, their security or the police believe you may be involved with criminal activity.

After being arrested or detained you need only present your identification which has your name and address on it. You need not answer any other questions.

WHAT ARE MY RIGHTS?

Whether you are a citizen, juvenile or a non-citizen you have certain rights when arrested.

Some of those arrested get themselves in more trouble because they believe that the police or arresting agency has to inform you of the charges against you and read to you the "Miranda Rights". This is false!

The arresting officers never have to tell you why you are being arrested and do not have to inform you of your right to an attorney, your right to remain silent, if you do not have funds and attorney will be appointed for you and so on.

Why? They only have to read you the Miranda Rights if they intend to use what you say against you in Court. If they do not intend to use what you say against you in court then no rights need be read to you.

However, if they do attempt to use what you say after you are arrested in court your attorney will be able to have that which you said without your attorney present stricken from the record.

However, this does not mean you matter will be dismissed. If you volunteer information to the police they may use that information against you.

So, the best advice is not to say anything if you are arrested, except as mentioned above.

Remember, if the police are asking you questions that may mean they do not have enough evidence against to convict you of a crime.

DO I HAVE A RIGHT TO MAKE A PHONE CALL?

Yes, the question is when! When the police get good and ready to let you. If you have been a problem case they may let to spend more time in jail then you need to by not allowing you to call for many hours after you have been arrested. For those more cooperative they probably will allow you to call after you have been formally booked.

WHEN CAN I MAKE A CALL FOR HELP?

Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have a right to make and complete three telephone calls that are free within the local dialing area.

CAN I BE QUESTIONED AFTER THEY ADVISE ME OF MY RIGHTS?

If you request an attorney at any phase of your interrogation by the police they must stop questioning you and provide you with an attorney. If they want to continue to question you and you answer them you may be volunteering information they need to convict you. If you knowingly waive or give up your rights to have an attorney present they may use what you say against you in court.

Bottom line, it is best to say nothing after being arrested and speak to an attorney.

You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take any of the tests, your driver's license will be suspended and the refusal will be used against you in court.

WHEN SHOULD I SEE A LAWYER?

The sooner you retain an attorney the faster he or she can get to work on your matter. If you wait valuable information and investigation material can be lost.

If you do not have an attorney a public defender will be appointed to you at the time of your arraignment or you may try to see one in the courthouse where you are to appear.

WHO CAN ARREST ME?

You can be arrested by the police, highway patrol, a district attorney, a parole officer, or any other authorized government agent state or federal.

You can also be arrested by a citizen who decides to make a citizens arrest in the presence of a law enforcement officer. Citizen arrests most commonly arise from those who commit a misdemeanor crime that occurred outside the presence of the police.

Police cannot arrest you for a misdemeanor crime committed outside their presence.

Security guards can arrest or detain you as they usually make citizens arrest of your person and hand you over to law enforcement upon their arrival.

Traffic tickets in some jurisdictions are infractions of the law and all that is required is that you sign the ticket promising to appear at the place and on the date indicated in the ticket and that you have identification. However, if you refuse to sign the ticket or you do not have identification you may be arrested and jailed.

You can be arrested and a warrant for your arrest is not needed.

WHEN IS AN ARREST WARRANT USED?

Usually a warrant is required before you can be taken into custody in your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone's life or serious damage to property.

The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed a crime. If your name is unknown, "John Doe" can be used on the warrant - along with your description.

Once an arrest warrant is issued, any law enforcement officer in the state can arrest you - even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.

However, before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door - or if there is another good reason - the officer can break in through a door or window.

If the police have an arrest warrant, you should be allowed to see it. If they don't have the warrant with them, you should be allowed to see it as soon as practical.

The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.

Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.

WHAT IS BAIL AND HOW IS IT SET?

The amount of (bail) cash money or other security deposited with the court to insure that you will appear for your hearing. It is set by a schedule in each county and differs in each state. You may be notified that you can forfeit or give up bail instead of appearing in court if you receive a traffic citation.

However, if you have any doubt, go to court so a warrant is not issued for your arrest for failing to appear. Bail forfeiture does not apply to misdemeanors or felonies. Forfeiting bail does not mean that the charges are dropped and usually works as a conviction for a traffic offense.

Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody. Depending on where you are arrested, you may have the opportunity to request a bail reduction through a bail commissioner or judge.

When you are taken to court for bail setting or release, the judge or commissioner will consider the seriousness of the offense you are charged with, any prior failures to appear (even for traffic tickets), any previous record, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. The law presumes you are guilty of the charges for purposes of setting bail or release.

In some cases you may qualify for an O.R. release.

WHAT DOES AN O.R. RELEASE MEAN?

Instead of paying bail, you might be released on your own recognizance or "O.R." (or supervised O.R.). This means that you do not have to pay bail because the judge believes that you will show up for court appearances without bail.

If you qualify you will not have to spend the10% of your bail fee or post your property to secure your bail bond.

WHO MAINTAINS ARREST RECORDS AND WHAT DO THEY INCLUDE?

Local police departments and the State Department of Justice keep arrest records. According to law, they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies, which have a right by state law to investigate your criminal background.

The arrest record includes when and why you were arrested, whether the charges against you were dropped or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty, pleading nolo contendere and being found guilty after a trial count as convictions.

If you are convicted of committing a misdemeanor, placed or probation and stay out of trouble, you are able to have the conviction removed from your public record for such purposes as employment background checks after probation is over. If you are convicted of certain felonies and you successfully complete probation, you can have the felony reduced to a misdemeanor on your record. You must contact the probation officer in either instance to clear your record.

WHAT HAPPENS AT AN ARRAIGNMENT?

You have a right to be arraigned without unnecessary delay - usually within 72 hours (court days only) - after being arrested. You will appear before a municipal or a justice court judge or commissioner who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on O.R., even if bail was previously set.

If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest to the charges. Legally this is the same as a guilty plea, but it cannot be used against you in a non-criminal case, unless the charge can be punished as a felony.

Before pleading guilty to some first-time offenses, such as drug use or possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.

If misdemeanor charges are not dropped, a trial will be held later in municipal court. If you are charged with a felony, however, and the charges are not dropped, the next step is a preliminary hearing.

WHAT HAPPENS AT A PRELIMINARY HEARING?

During the preliminary hearing, usually within 10 court days of the arraignment but may be continued upon waiver of your rights to a speedy or earlier hearing date, the district attorney's office must present evidence showing a reasonable suspicion that a felony was committed and that you did it to convince the judge that you should be brought to trial.

You may have a second arraignment. If the felony charges are not dropped at the preliminary hearing, you will be arraigned in Superiors Court where your trial later will be held.

If you are charged with a crime and unable to understand English, you have a right to an interpreter in your native language throughout the proceedings.

WHEN CAN AN OFFICER CONDUCT A SEARCH?

An officer always may only make a search with either your consent or a search warrant. You have a right; however, to see the warrant before the search begins.

WHEN CAN AN OFFICER SEARCH YOU, YOUR HOME OR YOUR CAR WITHOUT A WARRANT?

Body Searches: If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.

Home Searches: In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms - and even other parts of the same room - are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs that are in plain sight.

Car Searches: Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason - such as a broken taillight - they can take any illegal goods in plain sight.

If you, your home or your car is searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.

Notice: The purpose of this section is to provide general information on the law, which is subject to change. If you have a specific legal problem you should consult with the attorney who is going to handle your matter.