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#401 What to do if arrested

mp3 #401 What to do if you are Arrested (mp3 file)

Law enforcement officers investigating a crime may ask you questions without arresting you. Volunteering information can lead to your arrest. If you suspect you may be the subject of an investigation, you should IMMEDIATELY consult with a criminal attorney to avoid incriminating yourself. Continue here to be referred to an experienced and insured criminal defense attorney: 

This message will discuss the following questions:

1-What is an arrest?

2-What rights do you have?

3-Once you are told your rights, can you be questioned?

4-When should you see a lawyer?

5-How can you find a lawyer?

6-What if you can’t afford a lawyer?

7-Who can arrest you?

8-Can someone other than a police officer arrest you?

9-When is an arrest warrant used?

10-When can you be released?

11-What is bail and how is it set?

12-Who maintains arrest records and what do they include?

13-What happens at the arraignment?

14-What happens at a preliminary hearing?

15-When can an officer conduct a search?

16-When can an officer search you, your home or car without a warrant?

First, what is an arrest?

When you are arrested, you are taken into custody. This means you are not free to leave the scene. Without being arrested, you can be detained, however, 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. You also can be detained by storekeepers 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.

Next, what rights do you have?

Whether you are an adult citizen or non-citizen, 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.

-If you cannot afford a lawyer, one will be appointed for you.

These are your "Miranda" rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. Miranda rights do not apply if you volunteer information without being questioned by the police, or if you are not in custody when the police talk to you.

Next, once you are told your rights, can you be questioned? 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 questioning, then change your mind, questioning must stop as soon as you say so or 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 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 refused to take a test, your driver's license will be suspended and the refusal will be used against you in court.

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

Next, when should you see a lawyer?

If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. Your lawyer has a better sense of what you should and should not say to law enforcement officers to avoid being misrepresented or misunderstood. Your lawyer also can advise you or your family or friends on the bail process.

Next, how can you find a lawyer?

If you can afford a lawyer but do not know one, you can call your local State Bar certified lawyer referral service.

A friend, a co-worker or your employer, as well as doctors, ministers or teachers, may be able to recommend a lawyer. If you belong to a legal insurance plan as an individual or through your company, labor or credit union, the plan may provide a lawyer to represent you. Ask for a lawyer who is qualified in criminal law. If you decide to hire a lawyer, make sure you understand what you will be paying for, how much it will cost, and when you are expected to pay your bill.

Next, what if you can't afford a lawyer?

The public defender's office may provide you with a lawyer, or the court will appoint one for you. The U.S. Constitution guarantees anyone charged with a crime the right to legal counsel. Public defenders are experienced attorneys in criminal law, and are not related to the prosecutors and police.

Next, who can arrest you?

All law enforcement officers -- such as police officers, county sheriff officers, investigators in a district attorney's or an attorney general's office and highway patrol officers - can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.

They can arrest you even if they don't have an arrest warrant if they have probable cause or good reason to believe you committed a felony, such as armed robbery. (A felony is a crime of a more serious nature than a misdemeanor. A felony is usually punishable by imprisonment for more than a year.) They do not have to see you commit a felony in order to arrest you. Officers do, however, have to see you commit a misdemeanor in order to arrest you.

If you commit an infraction or some misdemeanors, instead of taking you into custody, they may ask you to sign a citation or notice. This may be a minor offense, such as a vehicle violation, or shoplifting. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification, or if you refuse to sign, however, an officer may take you into custody.

Next, can someone other than a police officer arrest you?

Any person, such as a private security guard, can make a citizen's arrest if they- see a misdemeanor being attempted or committed. (A misdemeanor is a criminal offense, usually punishable with a fine or a jail term up to one year.) They also can make a legal arrest for a felony as long as it actually was committed and they have good reason to believe you did it. They must take you to a police officer or judge, who is required by law to take you into custody.

Next, 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 seriously damaging 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.

Before entering your home, a law enforcement officer generally 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.

Next, when can you be released?

If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered only a detention, and it will not be recorded as an arrest.

Next, what is bail and how is it set?

The amount of bail -- money or other security deposited with the court to insure that you will appear--- is set by a schedule, in each county. 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 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.

When you are taken to court for bail setting or release, the judge 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.

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 your court appearances without bail.

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. Pleading guilty and being found guilty after a trial, both count as convictions.

If you are convicted of committing a misdemeanor, placed on probation and stay out of trouble, you are able to have the conviction removed from your 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.

Next, what happens at an arraignment?

You have a right to be arraigned without unnecessary delay -- usually within two court days -- after being arrested. You will appear before a municipal or a justice court judge 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 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 you plead not guilty to misdemeanor charges, and the charges are not dropped, a trial will be held later in municipal court.

If you plead not guilty to a felony, however, and the charges are not dropped, the next step is a preliminary hearing.

Next, what happens at a preliminary hearing?

During the preliminary hearing, usually within 10 court days of the arraignment, 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 then have a second arraignment. If the felony charges are not dropped at the preliminary hearing, you will be arraigned in superior court where your trial will be held later.

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

Next, when can an officer conduct a search?

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

Next, 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 for other people in your home, an officer can seize evidence of any crime, such as stolen property or drugs, that is in plain sight.

-Car searches. Your car and truck 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 tail light - they can take any illegal goods in plain sight.

If you, your home or your car are 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.

The purposed of this message is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer.

The information you have just read is based on a pamphlet published by the State Bar of California. If you would like a free copy of the state bar's pamphlet on this subject, please call 888-875-LAWS. That’s 888-875-5297. Ask for the pamphlet titled, "What should I know if I am arrested?" This and other pamphlets can also be found on the State Bar’s website at

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