Criminal Law - The Arrest Process

If you are arrested, you are taken into custody and you are not free to leave the scene. Before being arrested, you can be detained, and held for questioning for a short time if a police officer believes you may be involved in a crime. For example, an officer may detain you if you are driving in an erratic manner.

You may be arrested- even without an arrest warrant - if an officer has probable cause or strong reason to believe you committed a serious crime or felony, such as armed robbery. (A felony is defined as a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year.) The officer does not need to see you commit a felony in order to arrest you. The officer needs to see you commit a misdemeanor in order to arrest you.

If you are arrested or detained, you have the right not to answer any questions. You should give your name and address and show some identification if requested.

Yor Legal Rights When Arrested

Whether you are arrested, you have certain rights. Before a police officer questions you, he should "read you your rights." These well known rights will be very important if you are arrested. They 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 are your "Miranda" rights, mandated by The US Supreme Court that derive from your rights under the U.S. Constitution. If the officer fails to give these warnings, your lawyer may later seek to have any statements you made to the police "suppressed," so that they cannot be used against you in court. The failure of an officer to give warnings does not usually mean that your case will be dismissed, but may be used to remove certain statements from the evidence against you. Statements will not be suppressed if you volunteer information without being questioned by the police.

In practice failure to give warnings often means your word against the officer, an officer may ask you to sign something or give you a consent form. You should not sign anything or make statements to the police if you are arrested for a serious crime.

Continued Questioning

The officers may question you, without a lawyer present, if you voluntarily give up your rights and if you understand what you are giving up.
Be aware you are voluntarilry giving up rights by speaking to the police. The police will not warn you again and will use pshylogical pressure and all of their skills to elicit information from you.

You should ask for a lawyer and questioning must stop.

Even if you agree to the questioning, and then change your mind, the questioning must stop as soon as you say that you want a lawyer. However, if the questioning continues after you request a lawyer and you continue to speak, your answers may be used against you if you later testify to something different.

You should be cooperative and respectful with the police during your arrest, but you should not make any statements.

Physical Evidence

In some cases you may be asked to give certain physical evidence. Most commonly if you are arrested for drunk driving you may be asked to to take a breathalyzer or blood test to measure your blood alcohol content. (see our drunk driving page >>) If you refuse to take the breathalyzer your driver's license will be suspended but in Massachusetts the refusal cannot be used against you in court. The police will not tell you the consequences or the legality of your refusal. You should not take any tests. In more serious cases the police may later seek and obtain blood, tissue samples, semen and other biological evidence.

Getting Legal Help

After you are booked, which means your arrest is written into official police records you will be fingerprinted and photographed. You have a right to make and complete a telephone call that is free within the local dialing area.

If you are arrested for a crime, you should contact an attorney as soon as possible. The attorney is famailr with the process of an investigation and will make sure law enforcement officers do not take advantage of you or misinterpret or misunderstand your statements. The lawyer also can advise you or your family or friends on the bail process, if bail is imposed.

Release without Bail

After your arrest, while in custody, the police are convinced that you did not commit a crime, they will release you. Your arrest then will likely be considered a detention and not recorded as an arrest.

Even if you are charged, instead of paying bail, you might be released on your own recognizance because the magistrate or judge believes that you will show up for court appearances without bail.

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