WHAT TO DO IF YOU’RE ARRESTED
So, you think it is never going to happen, eh? You would be surprised at the number of people who think that they are law abiding citizens and lead exemplary lives who wind up sitting in my office or in jail with a family member calling me. So here is my class on criminal justice 101.
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, however, you still could be detained or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a recent burglary site. Storekeepers also can detain you if they suspect you have stolen something. Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested. In other words – SHUT UP!!! The police know all the tricks about how to get you to spill your guts and most of the criminal defense attorneys I know will tell you that a lot of cases are defensible but for the fact that the defendant admitted to the crime, either directly or indirectly. The criminal justice system is an adversary system. Often, police officers will say: “I can’t help you unless you talk to me and tell the truth”. It’s a crime to lie to a police officer in the course of an investigation – but saying nothing is not against the law. AND police officers are not there to help YOU! They just want to make their own jobs easy.
You have certain rights if you are arrested. Before the law enforcement officer questions you, he or she should tell you that:
- 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.
These rules do not apply if you volunteer information without being questioned by the police.
You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning and then change your mind, the questioning must stop as soon as you say so or as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different. You may also 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 the test, your driver’s license will be suspended and the refusal will be used against you in court.
Once you have been arrested, you have a right to make and complete three free telephone calls within the local dialing area. Any additional calls made from jail must be collect calls.
All law enforcement officers can arrest you whether they are on or off duty, in most cases. Probation and parole officers also can arrest you. If they have probable cause or good reason to believe you committed a felony, they can arrest you even if they do not have an arrest warrant. (A felony is the most serious type of crime and is usually punishable by imprisonment for more than a year. A misdemeanor is usually punishable by a fine or short jail term.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
Your silence and the importance of your silence cannot be emphasized enough. The police will use “Every trick in the book” to coerce you into making a statement against your interest. The will threaten arrest, offer to let you go, and even lie about what evidence they have against you. Be polite, be respectful, but be silent. Say: I am sorry officer, with all due respect, I decline to make any statement. If you are going to arrest me, when the time is right, I would like to call my family or my lawyer.” You may be afraid to be arrested, but there are few charges where you cannot be bailed out and 50 to 75 percent of all convictions or guilty pleas are based upon the defendant’s admission or a statement against their interest.
A warrant is usually required before you can be taken into custody in your home. (You can, however, be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone’s life or seriously damaging property.) The arrest warrant must be signed by a magistrate or judge, who must have good reason to believe that you committed a crime. 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 is practical. Before entering your home, a law enforcement officer generally must knock, identify him 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. 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 that you will use force to cause serious injury.
Bail is money or other security deposited with the court to insure that you will appear. It is set by a schedule in each county. When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense with which you are charged, any prior failures to appear (even for traffic tickets), any previous criminal record and your connections to the community, as well as the probability that you will appear in court. Generally, the amount of bail is set according to a written schedule based on your charges. 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 you will show up for your court appearances without bail.
Conclusion
Co one plans on getting arrested and often they are surprised when a detective calls them and asks that they come to the detectives office to make a statement. Bad check charges, welfare fraud, elder abuse, child neglect or child abuse and insurance fraud are just some of the crimes in which otherwise law abiding citizens can get caught in the mire of the criminal justice system. Over-zealous police investigators, social workers, internal corporate investigators can each develop their “own spin” concerning your version of the facts of any situation. When that happens, objectivity flys out the window –AND THEY HAVE THE POWER!!! They can have you arrested, charged and, if you make critical mistakes during the process, you may find yourself facing a jail or prison sentence.
Most people have a naïve view of the criminal justice system because they have been lucky enough to avoid it. They lucky enough to have avoided such involvement when they were young adults, they have been smart enough to have avoided driving under the influence or doing other illegal acts as adults and their children have been lucky enough to avoid involvement with the system. Those who have not been so lucky are shocked at the ruthlessness of the current system. The police and the prosecutors are under a tremendous amount of pressure to be “Tough on crime” thanks to public sentiment and the media. As a result, the criminal justice system is extremely adversary and like most “Systems”, it does not discriminate. You might be a “good person” and your child might be “Basically a good kid.” Should you feel, however, that your “We are not criminals!!” attitude insulates you from the power or lack of forgiveness that our system can offer, you are making a huge mistake.
Charles Farano practices criminal defense, white collar crime and civil litigation in Southern California. He is certified by the National Board of Trial Advocates and rated by Martindale Hubbell. He is listed on Lawyers.com and can be reached at cfarano@faranolaw.com.
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