San Diego - El Cajon Automobile Accident Lawyer
What to do if you are arrested.

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.

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 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 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 inadmissible.

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 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

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.

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 collateral.

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 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 case.

The Law Offices of Dan Bacal
275 E Douglas, Ave., Ste 114
El Cajon, CA 92020
Telephone: 619-588-2064
Fax: 619-839-3133
Online Contact Form


What to do if you are in an auto accident
What to do if you are arrested

San Diego Court
California Law
Legal Dictionary
National Association of Personal Injury Lawyers