Arrests

Whether or not you’re locked up often turns on how you handle yourself. . . .

What happens when you’re arrested, and what to do about it:

IF YOU ARE STOPPED OR ARRESTED:

If you are stopped by the police, or arrested, whether you are guilty or not, you have the same rights. You can protect these rights best if you use this information:

IF YOU ARE STOPPED BY THE POLICE:

1. You do not have to answer any questions — you may remain silent — except that you may be required to state your name and address and, possibly, your birthday.
2. The police may frisk you for weapons by patting the outside of your clothing.
3. Whatever happens, you must not resist arrest even if you are innocent.

IF YOU ARE ARRESTED:

1. As soon as you have been booked, you have the right to complete phone calls free within the local dialing area, to two of the following: an attorney, a bail bondsperson or other person.
2. The police must give you a receipt for everything they have taken from you, including your wallet, clothing, keys, and packages you were carrying when arrested.
3. You must be allowed to hire and see an attorney immediately.
4. You do not have to give any statement to the police; even if you give a statement, you do not have to sign it. If you choose to make a statement, the prosecution can use your statement to argue that what you said was false, or to point out that since some detail in any testimony you give in court somehow differed from that statement you gave the police, it appears false. IT IS OFTEN BEST NOT TO SAY ANYTHING, except to politely tell the police that you want a lawyer present and that you do not wish to make a statement. You may need to do this more than once. Stay calm, and tell them as often as necessary, “I want to talk to my lawyer.” If they persist on asking you questions (other than your name or address) this is your answer: “I want to talk to my lawyer.”
5. In most cases you — adult arrestees — must be allowed to post bail, but you must be able to post an amount in cash or pay the bail bondsperson’s fee. If you wait for your first court date, you may then ask the judge to release you from custody without bail, but he/she does not have to do so and he/she may even increase bail. Juvenile arrestees have no right to bail.
6. If you remain in jail, the police must bring you into court or release you within 48 hours after your arrest, (if the period ends at a time when the court is not in session, they must bring you before a judge the first day court is in session), or provide a written declaration so that a judge can make sure there is probable cause to hold you a little longer.
7. If you do not have money to hire an attorney, immediately ask the police to get you an attorney without charge. YOU HAVE AN ABSOLUTE RIGHT TO HAVE AN ATTORNEY PRESENT WHEN THE POLICE QUESTION YOU. Once you have asked for an attorney, the police are supposed to stop questioning you until your lawyer has arrived to advise you.

“THEY DIDN’T READ ME MY RIGHTS! — NOW WHAT?”

Only if you have been arrested, and the police want to ask you questions about the arrest, are they required to read you your rights. You’ve heard them before:

• You have the right to remain silent.
• If you give up that right, anything you say can be used against you.
• You have the right to have an attorney present during questioning.
• If you desire an attorney and can not afford one, you will be provided an attorney without cost to you.

Unless the police have placed you under arrest (or if a reasonable person would have felt they were not free to leave) AND then decide to ask you questions about the case must you be read your rights. Only if the court finds that you were in custody and the police interrogated you does it matter that the police did not read you your rights.

Even when the court finds an unlawful interrogation, it does not mean your case will be dismissed: it means you were questioned illegally, and that any statement you provided under these conditions must not be used as evidence to prove you are guilty. If there’s other evidence against you, the case against you probably goes on anyway. And if you testify in your defense, the prosecution will probably be able to use your statement — even if it was obtained illegally — to prove to the jury that they should not listen to you.

If you are being investigated for a criminal offense, or have been charged with a criminal offense, and want to know how to best proceed, please contact the attorneys at Jackson Law online or call Jackson Law at 650-587-8556.