San Diego - El Cajon Automobile
What to do if you are arrested.
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 fine of up to $2,000.00. 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.
Being arrested means that you are taken into legal 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.
YOUR RIGHTS IF
If arrested and taken into custody you have certain rights that
the police officer should tell you before you are questioned
about the incident, which are:
You have the right to
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 rights were mandated by
the US Supreme Court in the Miranda case which declared that if
you are not given these warnings your statement or other
evidence discovered as a result of the statements may be
If you give up your Miranda rights, you can be questioned.
However, if you start answering questions and then decide you
want a lawyer present before you continue or want to stop
answering questions, the questioning must stop. If not, the
subsequent answers may be inadmissible.
Although you have the right to
remain silent as previously discussed, you still may be required
to provide certain physical evidence such as a blood test if
suspected of DUI.
After being arrested and then
booked (photographed, fingerprinted and documented into police
records) you have a right to make free local telephone calls. At
least one of those calls should be to make arrangements to see a
GET A LAWYER
If a case is serious enough that you have been arrested, you
should immediately make arrangements to speak with a lawyer.
Until you talk to an attorney, you should not discuss the facts
of your case with anyone
POLICE OR CITIZEN
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.
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 donít 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.
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.
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
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.
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.
The first court appearance is the arraignment. The arraignment
is where the accused is given a copy of the complaint and enters
a plea to the charges (normally not guilty) and other dates are
set. At the arraignment an accused in custody can ask the judge
for release of custody or for a reduction in bail.
On some charges, such as
possession of small amounts of illegal drugs, the court may
allow you to attend a diversion program and after successful
completion of the program the charges are dismissed. An
experienced criminal defense attorney can be helpful in
assisting an accused in applying for diversion.
Eventually, if the case is not
settled by way of diversion, dismissal or plea bargaining, a
misdemeanor case is set for a jury trial. A felony case is first
set for a preliminary hearing. At that hearing, the prosecuting
agency must present evidence that a crime was committed and that
the accused committed it. Under the present system, the judge
almost always finds reasonable cause to continue the
prosecution. After the preliminary hearing, another arraignment
is scheduled where future court dates are set. Eventually, if
the case is not settled then a trial date is set. In both
misdemeanor and felony cases, the accused and the prosecution
both have a right to demand a jury trial.
At a jury trial, the guilt or
innocence of the accused is decided by twelve fair and impartial
jurors. The jurors in a criminal case must unanimously agree on
the verdict. If not, as to any counts where there is not an
agreement (hung jury) then the judge declares a mistrial and a
future trial is held unless the case is plea bargained in the
interim. At trial, the accused has a right to confront and
cross-examine all witnesses against him or her. The accused has
the right to testify or remain silent and to subpoena witnesses
to testify free of charge. Of course, at all stages of the
proceedings an accused has the right to a lawyer
IF ARRESTED, HIRE AN
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