Please consult an attorney for advice about your individual situation. This site and its information is not legal advice, nor is it intended to be.
Feel free to get in touch by electronic mail, letters or phone calls. Contacting us does not create an attorney-client relationship.
Until an attorney-client relationship is established, please withhold from sending any confidential information to us.
What should I know if I am contacted by the police:
1. What happens if I am detained or arrested?
If you are contacted, detained, or arrested by the police, the law, both California and Federal, does not require you to answer any questions other than giving your name, address, and providing identification if you have it.
2. If I am arrested, what rights do I have?
If you are arrested, and before an officer can legally question you, he or she must read you your Miranda rights :
After you have been read your Miranda rights, you must agree to give up those rights before an officer can legally question you. Remember: Miranda rights are only applicable if you are formally ARRESTED. If you are not arrested, there is NO requirement for an officer to warn you, and ANYTHING you say will be used against you later.
3. Once I’m told my rights, can I be questioned?
You can be questioned, without a lawyer present, only if you give up your rights and if you understand what you are giving up. As a rule don’t say anything until a lawyer is present. Understand that even if you are not given Miranda warnings, your statement can still be used in Court if you end up testifying on your own behalf. Understand also that the police have an absolute right to have you give physical evidence. You may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver’s license will be suspended and the refusal to take the test will be used against you in Court. Once you have been officially arrested or booked, and you have been fingerprinted and photographed, you have a right to make and complete three free phone calls.
4. Who can arrest me, and when can I be arrested?
All law enforcement officers can arrest you whether they are on or off duty, in most cases. A probation or parole officer can also arrest you, however, a correctional officer cannot. They can arrest you even if they do not have an arrest warrant, as long as they have probable cause or good reason to believe you committed a felony. (A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year. A misdemeanor is usually punishable with a fine or short jail term.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you. If you commit an infraction, they may ask you to sign a citation or notice instead of taking you into custody. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in Court. However, if you have no identification, or you refuse to sign, an officer may then take you into custody. Remember, if you fail to go to Court on an infraction you can be charged with a misdemeanor failure to appear that may result in jail time and a suspension of your driving privileges.
5. If arrested, must I go to jail?
If, after an arrest, but during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not be recorded as an arrest. However, this rarely happens, and it is extremely foolish to talk to the police without a lawyer.
6. If I am arrested, how do I get out of custody?
The amount of bail (money or other security deposited with the Court to insure that you will appear) is set by a schedule in each County. For some traffic citations, you may be notified that you can forfeit or give up bail instead of appearing in Court. A Bondsman will charge you 10% as a fee for your bail. For example, if your bail is $50,000 dollars, you will have to pay the bondsman $5,000 dollars, which is never returned, even if your charges are dropped. Bail forfeiture in lieu of an appearance does not apply to misdemeanors or felonies, and you must appear in Court. If you fail to appear, your bail will be lost and a new warrant will be issued for your arrest. For traffic citations, a “bail forfeiture” works as a conviction for the traffic violation. Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody. Depending on where you were arrested, you may have the opportunity to request a bail reduction through a bail commissioner. When you are taken to Court for bail setting or release, the judge will consider the seriousness of the offense with which you are charged, any prior failures to appear (even for traffic tickets), any previous criminal record and your connections to the community, as well as the probability that you’ll appear in Court. Generally, the amount of bail is set according to a written schedule based on your charges. Instead of paying bail, you might be released on your own recognizance or “O.R.” (or supervised “O.R.”). This means that you do not have to pay bail because the judge believes that you will show up for your Court appearances without bail.
7. What are your rights at your first Court appearance?
You have a right to be arraigned without unnecessary delay (usually within two court days) after being arrested. At the arraignment, you will appear before a judge who will tell you officially of the charges against you. You can also request to be released on your own recognizance (O.R.), even if bail was previously set. If you are charged with a crime and unable to understand English, you have a right to an interpreter throughout the proceedings. Also, at the arraignment you should ask the Court for time to speak with a lawyer before entering ANY plea. Most Courts will give you time to seek legal advice.
8. If I am charged with a serious offense (felony) what happens?
During the preliminary hearing, usually within 10 Court days of the arraignment, the district attorney’s office must present evidence showing a reasonable suspicion that a felony was committed and that you did it. The standard of proving that you did what you are accused of is the lowest standard in the law. Under Prop 115 there is no requirement that the victim even testify. Having your own counsel, whether public defender or private, can greatly impact what happens at this hearing. Even if you can’t afford a private lawyer, you are much better off with a public defender than without a lawyer. At the end of your preliminary hearing, the Judge must be convinced that there is sufficient evidence to bring you to trial. If the Judge does not dismiss the charges after the preliminary hearing, a jury trial date will be set.
9. When can I, my car, or my home be searched?
An officer can always conduct a search with either your consent or a search warrant. You have a right, however, to see the warrant before the search begins. As a general rule, NEVER consent to ANY search.
10. When can an officer search me, my home, or my car without a warrant?
Body Searches - If you are arrested, an officer can search you, without a warrant, for weapons, evidence, or illegal or stolen goods. Strip searches should not be conducted for offense that do not involve weapons, drugs or violence unless police reasonable suspect you are concealing a weapon or illegal goods, and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.
Home Searches - In exigent circumstances, such as when an officer may be trying to prevent someone from being injured, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. This is called the “plain view doctrine.” Other rooms, and even other parts of the same room, are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, which is in plain sight. Remember, if the police come to your home to talk to you, step OUTSIDE and close your door. Even if they don’t have a warrant or exigent circumstances, if you allow them into your home and they see contraband, you WILL be arrested.
Car Searches - Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason, such as a broken taillight, they can take any illegal goods that are in plain sight. Also, remember that if there is some grounds for the police to impound your car (driving on a suspended license, expired registration, etc.) your car can be impounded, and the police may search your entire vehicle, even closed compartments.
Copyright © 2016, Morton & Russo LLP, 521 Georgia St. Vallejo CA. 94590, 707-644-4004, Website by Acker Design & Web Services
Serving Vallejo, Fairfield, Napa, Richmond, and Martinez as well as other parts of Solano, Napa, Contra Costa, San Francisco, and Marin counties.