Arrested? What to do next

THE S TAT E BAR OF CAL I FORN IA

WHATSHOULD IKNOW IFI AMARRESTED?

GET THE

L E G A L

F A C T S

OF L I FE

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What should Iknow if I am

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arres ted?What is an arrest?

2 What rights do I have?

3 Once I’m told my rights, can I be questioned?

4 When should I see a lawyer?

5 How can I find a lawyer?

6 What if I can’t afford a lawyer?

7 Who can arrest me?

8 Can someone other than a law enforcementofficer arrest me?

9 When is an arrest warrant used?

10 When can I be released?

11 What is bail and how is it set?

12 Who maintains arrest records and what dothey include?

13 What will happen at my arraignment?

14 What happens at a preliminary hearing?

15 When can an officer conduct a search?

16 When can an officer search me, my home or mycar without a warrant?

The Criminal Law Section of the State Bar of California assisted in therevision of this pamphlet.

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What is an arrest?

When you are arrested, you are taken into cus-tody. This means that you are not free to leave thescene. Without being arrested, however, you stillcould be detained or held for questioning for ashort time if a police officer or other personbelieves you may be involved in a crime. Forexample, an officer may detain you if you are car-rying a large box near a recent burglary site.Storekeepers also can detain you if they suspectyou have stolen something.

Whether you are arrested or detained, you donot have to answer any questions except to giveyour name and address and show some identifica-tion if requested.

What rights do I have?

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 presentwhile you are questioned.

• If you cannot afford a lawyer, one will beappointed for you.

These are your Miranda rights, guaranteed bythe U.S. Constitution. If you are not given thesewarnings, your lawyer can ask that any statementsyou made to the police not be used against you incourt. But this does not necessarily mean that yourcase will be dismissed. And this does not apply ifyou volunteer information without being questionedby the police.

Once I’m told my rights, can I bequestioned?

You can be questioned, without a lawyer present,

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only if you voluntarily give up your rights and if youunderstand what you are giving up. If you agree tothe questioning and then change your mind, thequestioning must stop as soon as you say so or assoon as you say that you want a lawyer. If the ques-tioning continues after you request a lawyer andyou continue to talk, your answers can be usedagainst you if you testify to something different.

You may be required to give certain physicalevidence. For example, if you are suspected ofdriving under the influence of alcohol, you may berequested to take a test to measure the amount ofalcohol in your system. If you refuse to take thetest, your driver’s license will be suspended andthe refusal will be used against you in court.

Once you have been arrested, you have a rightto make and complete three free telephone callswithin the local dialing area. Any additional callsmade from jail must be collect calls.

When should I see a lawyer?

If you are arrested for a crime, particularly aserious one, you should contact a lawyer as soonas possible. He or she has a better sense of whatyou should and should not say to law enforcementofficers to avoid being misinterpreted or misun-derstood. The lawyer also can advise you or yourfamily or friends on the bail process.

How can I find a lawyer?

If you can afford a lawyer but do not knowone, ask a friend, co-worker, employer or businessassociate to recommend one. In addition, you maywant to look for a qualified criminal law attorney.

In your search for a lawyer, you might call aState Bar-certified lawyer referral service in yourarea. For an online list of certified lawyerreferral services, visit the State Bar’s Web siteat www.calbar.ca.gov/lrs. Or, for the phonenumbers of certified services in your county, call1-866-44-CA-LAW (442-2529). Out-of-state callerscan call 415-538-2250 to hear the same message. Orcheck the Yellow Pages of your telephone directoryfor listings under “Attorney Referral Service.”

State Bar-certified lawyer referral services,

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which must meet minimum standards establishedby the California Supreme Court, can help youfind the right lawyer for your particular situation.Most of these services offer half-hour consultationsfor a modest fee. (Lawyer referral service fees dovary. Don’t forget to ask whether there is a fee forthe referral or initial consultation.)

Attorneys who are members of State Bar-certi-fied lawyer referral services must carry insurance,agree to fee arbitration for fee disputes, meet cer-tain standards of experience and be State Barmembers in good standing.

In addition, the State Bar certifies “specialists”in nine legal areas, including criminal law. Thedesignation of “specialist” means that the attorneyhas met certain standards. However, there arelawyers with experience and expertise in criminallaw who do not seek such certification. For a list ofspecialists, go to www.californiaspecialist.org. Orcall the State Bar at 415-538-2120. You can alsorequest free informational brochures on the StateBar’s certified specialist program.

If you do decide to hire a lawyer, make sureyou understand what you will be paying for, howmuch it will cost and when you will be expected topay your bill.

If you belong to a legal insurance plan as anindividual or through your company, labor orcredit union, the plan may provide a lawyer torepresent you. Ask for a lawyer who is qualified incriminal law.

For more information, see the State Barpamphlet How Can I Find and Hire the RightLawyer? You can order this pamphlet and otherState Bar consumer pamphlets free of charge bysending an e-mail to [email protected]. Or,to find out how to order the State Bar’s consumereducation publications by mail, call 1-888-875-LAWS(875-5297). Or visit the bar’s Web site—www.calbar.ca.gov—where you’ll find the pam-phlets, as well as information on ordering them.

What if I can’t afford a lawyer?

The U.S. Constitution guarantees everyonecharged with a crime the right to legal counsel. Apublic defender, or other court-appointed attorney,

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will be appointed for you if you cannot afford tohire an attorney on your own.

Public defenders are experienced trial attor-neys who specialize in criminal law. They are thereto represent your best interests and do not workfor the courts, prosecutors or police.

Who can arrest me?

All law enforcement officers can arrest youwhether 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 tobelieve you committed a felony, they can arrest youeven if they do not have an arrest warrant. (Afelony is the most serious type of crime and is usu-ally punishable by imprisonment for more than ayear. A misdemeanor is usually punishable by a fineor short jail term.) They do not have to see youcommit a felony in order to arrest you. They do,however, have to see you commit a misdemeanorin order to arrest you.

If you commit an infraction, they may ask you tosign a citation or notice instead of taking you intocustody. An infraction is a minor offense, such as amoving violation, for which the punishment is usu-ally a fine. If you sign the citation, you are notadmitting guilt. You are only promising to appear incourt. If you have no identification or refuse to sign,however, an officer may take you into custody.

Can someone other than a lawenforcement officer arrest me?

Anyone can make a citizen’s arrest if he or shesees a misdemeanor being attempted or commit-ted. He or she also can make a legal arrest for afelony as long as it actually was committed, and heor she has good reason to believe you did it. He orshe must take you to a police officer or judge whois required by law to take you into custody.

When is an arrest warrant used?

Awarrant is usually required before you canbe taken into custody in your home. (You can,

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however, be arrested at home without a warrant iffast action is needed to prevent you from escaping,destroying evidence, endangering someone’s lifeor seriously damaging property.)

The arrest warrant must be signed by a magis-trate or judge, who must have good reason tobelieve that you committed a crime.

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

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

Before entering your home, a law enforcementofficer generally must knock, identify him or her-self and tell you that you are going to be arrested.If you refuse to open the door—or if there is anoth-er good reason—the officer can break in through adoor or window.

The police may search the area within yourreach. If you are arrested outdoors, they may notsearch your home or car.

Resisting an arrest or detention is a crime. Ifyou resist arrest, you can be charged with a misde-meanor or felony in addition to the crime forwhich you are being arrested. If you resist, an offi-cer can use force to overcome your resistance orprevent your escape. The officer can even usedeadly force if it appears that you will use force tocause serious injury.

When can I be released?

If, during the questioning before any chargesare filed, the police are convinced that you havenot committed a crime, they will give you a writ-ten release. Your arrest would then be considered adetention and not be recorded as an arrest.

What is bail and how is it set?

The amount of bail—money or other securitydeposited with the court to insure that you willappear—is set by a schedule in each county. For

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some traffic citations, you may be notified that youcan forfeit or give up bail instead of appearing incourt. However, if you have any doubt, go to courtso that a new warrant is not issued for your arrestfor failing to appear. (For traffic citations, a “bailforfeiture” works as a conviction for the violation.)

Bail forfeiture does not apply to misdemeanorsand felonies, however, and you must appear incourt. If you fail to appear in court, your bail willbe lost and a new warrant will be issued for yourarrest. Officers at the jail may be able to acceptbail. If you cannot post or put up the bail, you willbe kept in custody. Depending on where you arearrested, you may have the opportunity to requesta bail reduction through a bail commissioner.

When you are taken to court for bail setting orrelease, the judge will consider the seriousness of theoffense with which you are charged, any prior fail-ures to appear (even for traffic tickets), any previouscriminal record and your connections to the commu-nity, as well as the probability that you will appearin court. Generally, the amount of bail is set accord-ing to a written schedule based on your charges.

Instead of paying bail, you might be releasedon your own recognizance or “O.R.” (or “super-vised O.R.”). This means that you do not have topay bail because the judge believes you will showup for your court appearances without bail.

Who maintains arrest records andwhat do they include?

Local police departments and the stateDepartment of Justice keep arrest records. By law,they cannot show such records to anyone exceptlaw enforcement officers, and may only showrecords of your convictions to certain licensingagencies that have a right by state law to investi-gate your criminal background.

Your arrest record includes when and why youwere arrested, whether the charges against youwere dropped or whether you were convicted ofthe charges and the subsequent sentence imposed.Pleading guilty and being found guilty after a trialboth count as convictions.

If you are convicted, are put on probation and

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successfully complete the probation, you may beable to have the conviction set aside and the casedismissed. This may be helpful for employmentbackground checks after the probation is completed.

If you are convicted of certain felonies and yousuccessfully complete probation, you may ask thatthe felony be reduced to a misdemeanor. Yourattorney will be able to assist you with a reductionand possible expungement of your record.

What will happen at myarraignment?

You will stand in front of a judge and enter aplea to the criminal charges filed against you. Ifyou have been arrested, you have the right to bearraigned on any charges without unnecessarydelay, usually within two court days. In addition,an attorney may be appointed for you if you can-not afford one. And if you do not understandEnglish, you have the right to have an interpreterthroughout the proceedings as well.

At the arraignment, you can plead guilty ornot guilty. Or, if the court approves, you can pleadnolo contendere (which means no contest). Legally,this is the same as a guilty plea, but it cannot beused against you in a non-criminal case unless thecharge could be punished as a felony. You shouldconsult with an attorney, however, before enteringany kind of plea.

Before pleading guilty to some first-time offens-es, such as drug use or possession in small amountsfor personal use, you may want to find out if there isa drug court program in your county. If you agree toparticipate in such a program, the judge will orderyou to get counseling or complete a drug treatmentprogram (instead of paying a fine or going to jail).And if you successfully complete the program, thecharges against you could be dismissed.

Depending on the circumstances of your case,your bail also might be raised or reduced duringyour arraignment. Or you could ask to be releasedon O.R.—even if bail has already been set.

If the misdemeanor charges are not droppedand you do not enter a guilty or no-contest plea, atrial will be held. If you have been charged with a

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felony, however, the process will be a little different.If the felony charge is not dropped and you do notplead guilty or no-contest, you will face a prelimi-nary hearing before your case can go to trial. Andbefore the trial, there will be other court appearancesas well. The charges against you might be dismissedfor some reason, or you might decide to changeyour plea, before a trial ever takes place.

What happens at a preliminaryhearing?

During the preliminary hearing (usually within10 court days of the arraignment), the district attor-ney’s office must present evidence showing a reason-able suspicion that a felony was committed and thatyou did it. The judge must be convinced that there issufficient evidence to bring you to trial. If the judgedoes not dismiss the charges after the preliminaryhearing, a jury trial date will be set.

When can an officer conduct asearch?

An officer can always conduct a search withyour consent or with a search warrant. You havea right, however, to see the warrant before thesearch begins.

When can an officer search me, myhome or my car without a warrant?

• Body Searches. If you are arrested, an officercan search you, without a warrant, for weapons,evidence or illegal or stolen goods. Strip searchesshould not be conducted for offenses that do notinvolve weapons, drugs or violence unless policereasonably suspect you are concealing a weapon orillegal goods, and they have authorization fromthe supervising officer on duty. If you are bookedand jailed, you may undergo a full body search,including body cavities.

• Home Searches. In emergencies, such aswhen an officer is trying to prevent someone from

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destroying evidence, your home can be searchedwithout your consent and without a warrant.

If you are taken into custody in your home, anofficer without a warrant can search only the limitedarea in which you are arrested. Other rooms—andeven other parts of the same room—are off limits,unless the officer believes that other suspects arehiding in other rooms. While searching your home,an officer can seize evidence of any crime, such asstolen property or drugs, which is in plain sight.

• Car Searches. Your car and trunk can besearched without your consent or a warrant if anofficer has good reason to believe it contains illegalor stolen goods or evidence. If the police stop yourcar 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 illegal-ly, a judge might say that any evidence found dur-ing the search cannot be used against you in court. Ifyou or your lawyer, however, do not object to theevidence before trial, the court might allow the evi-dence to be used. Even if the judge does decide thatthe evidence cannot be used against you, it does notalways mean that your case will be dismissed.

The purpose of this pamphlet is toprovide general information on thelaw, which is subject to change. It isnot legal advice. Consult a lawyer ifyou have a specific legal problem.

The State Bar of California

Office of Media and Information Services

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San Francisco, CA 94105-1639

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Publications: 1-888-875-LAWS (875-5297)

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www.calbar.ca.gov


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Arrested? What to do next