Arrest issues FAQ
By WORLDLawDirect [January 30th, 2011]
Are all arrests the same?
No. In some arrests, you're charged with a crime, while in others you're not. You're charged with a crime only if the possible penalty includes time in jail or prison. There's one exception, though: you may face jail time for failing to pay a fine or forfeiture, but this failure isn't considered a crime. In most cases, traffic offenses and city, town, or county ordinance violations are not criminal offenses.
Certain offenses can be charged as either ordinance or criminal offenses - for example, retail theft (shoplifting) or disorderly conduct. And some offenses are noncriminal for first time offenders but criminal for second time violators. The most common example of this is operating a motor vehicle while under the influence of intoxicants. A monetary penalty for a crime is called a fine. For a noncriminal offense, it's called a civil forfeiture.
There are some other important differences between criminal and noncriminal cases. First, a criminal conviction may have a negative effect on your employment opportunities, school applications, professional licensing, and so forth. Second, in a criminal case, the prosecution must prove you guilty beyond a reasonable doubt - a stricter requirement than for a noncriminal case.
Finally, you have more legal rights in a criminal case, such as the right to remain silent and the right to the assistance of an attorney. In a noncriminal case the prosecution can call you to the stand and force you to testify against yourself.
What happens if you're charged with a noncriminal offense?
If you're charged with an ordinance or traffic offense that is not a crime (such as speeding), you'll be given a citation. In most cases you won't be taken into custody. Police may not search you or your property without permission if you are not taken into custody for a noncriminal offense. The citation will usually give you a choice of paying a forfeiture or going to court. It will state a date for you to appear in court if you choose not to pay the forfeiture.
Your first court appearance is known as the arraignment, during which you enter a plea of "guilty," "not guilty," or "no contest." The "no contest" plea admits the offense charged but can't be used against you later in a lawsuit.
For instance, let's say you have an auto accident. As a result of the accident, you're given a traffic citation for a violation. In this case you may want to plead "no contest," in case the other driver decides to sue you. In most ordinance or traffic cases, when you plead "not guilty" you're given a pretrial date and a trial date. At the pretrial you'll meet with the prosecutor and try to settle the case. For example, you may try to change a speeding charge to a lesser point violation.
If you can't resolve the charge at pretrial, you must appear at the trial. You may or may not want to have an attorney, depending upon the seriousness of the offense, the status of your driver's license, and so on. If the judge finds you guilty and you don't pay the forfeiture by the deadline for payment, your driver's license may be suspended if the violation is for a traffic offense. Otherwise, you could be jailed or ordered to perform community service.
What happens if you're charged with a crime?
Usually you'll be taken into custody when you're arrested. The police will read you your rights, photograph you, and take your fingerprints. Remember that you have two important rights: the right to remain silent and the right to a lawyer. If you are indigent, an attorney from the State Public Defender's office will be appointed. Police may not ask you any more questions if you claim either or both these basic rights. If you are unable to communicate with the court or your attorney because of a disability or a language barrier, an interpreter will be provided for you.
To be released from custody after your arrest, you must post bail. In some cases, you can do this by a signature bond (a written promise to appear in court). In other cases, you may be required to provide either a secured surety bond (you put up property, such as a car or house), or cash (which may be posted by you or someone else). In addition, the judge may impose other conditions on you that he or she deems reasonable to assure your appearance or protects members of the community.
If you're charged with a misdemeanor, you may not be imprisoned for more than a year. Any "time" you serve will be in the county jail or house of correction. A felony charge is much more serious, because it can mean a year or more in prison. In either case, it's very wise to consult an attorney. If you can't afford one, the judge will refer you to the State Public Defender's office.
What are the steps in a criminal case?
In either a misdemeanor or a felony case, you'll have an initial appearance. At this appearance, you'll be served with a criminal complaint that outlines the charge, the probable cause supporting the charge, and the penalty.
In a misdemeanor case, you'll also enter a plea at the initial appearance. If you plead "not guilty" to a misdemeanor, you'll be given a trial date. For a felony, the next step is the preliminary hearing. At this hearing the prosecution must present enough evidence to convince the judge that you should stand trial for a felony offense.
If it's decided that your case will go to trial, you then attend an arraignment. At the arraignment, the district attorney will serve you with formal charges for a particular felony. At this time, you must enter a plea. In both misdemeanor and felony cases, you have the right to a jury trial.
How does plea negotiation work?
In most cases, your attorney and the prosecutor will meet to discuss your case before it goes to trial. The prosecutor may offer to negotiate with your attorney.
There are many possible types of "plea agreements." The prosecutor may offer a reduced charge. Or, if you're charged with several offenses, the offer may be to dismiss one or more charges or "read in" a charge (this means that you won't plead guilty to that charge, but the charge may be considered for sentencing). In return, you'll be expected to plead guilty or no contest to at least one offense.
Sometimes the plea agreement will be a recommendation for a particular sentence. Or it may be an agreement that the prosecutor will make no sentence recommendation. In any event, the judge does not have to honor the plea agreement. Your attorney and the judge must explain this to you. They must also explain all the possible results of a plea of guilty or no contest.
The judge will usually pronounce sentence immediately in a misdemeanor case. In a felony case, the judge may order a presentence investigation and set a separate sentencing date.