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Crucial advice to ensure a better outcome from a misdemeanor arrest

Crucial advice to ensure a better outcome from a misdemeanor arrest

A person gets arrested for a misdemeanor and might begin to panic. “Will I be locked up?” “What do I say to the police?” “Will I see a judge?” These questions, and many more can be answered with a brief description of what to expect, and what actions to take after being arrested for a misdemeanor crime. Knowing what to do, and what not to do, can help an arrestee navigate those first hours after arrest, protect their rights, and help ensure a positive beginning to the ensuing criminal prosecution.


Do

Do know what a “misdemeanor” is

The classification of a charged crime will dictate the proper course of action after an arrest. Generally, crimes are separated into three classifications. The most serious charges are felonies, which include murder, robbery and sexual assaults. The least serious offenses are violations or disorderly persons offenses, which are often non-criminal in nature. This means that although a person is accused of performing an illegal action, that action is not considered a crime. Some examples of violations are minor traffic infractions and violations of city ordinances.

Misdemeanors are the offenses less serious in nature than felonies, but unlike violations, they are crimes which, if convicted, would give a person a criminal record. Misdemeanor offenses include trespassing, simple assault, loitering, disorderly conduct, and petty theft. While prosecutors may have a tendency to treat misdemeanor arrests as less severe than felonies, the consequences of a conviction can be grave and result in jail time and a criminal record. For this reason, it is important to be informed of your rights, and the sensible actions to take if you are arrested for a misdemeanor crime.

Do ask for an attorney

Whether or not the police advise an arrestee of their right to an attorney, the arrested person should ask to consult with an attorney as soon and as often as possible. The Sixth Amendment of the United States constitution guarantees legal representation to every criminal defendant at the onset of any criminal proceedings, the first of which is usually the arraignment. Additionally, the United States Supreme Court has ruled that a suspect has the right to have an attorney present during any police questioning. Therefore, by requesting an attorney, a suspect either forces the police to suspend their questioning or secures the suspect legal representation before the police can resume the questioning. The request should be made immediately, and you should ignore any police officer's attempt to convince you that an attorney is not necessary.

Do ask for medical attention if injured or sick

The police are required to ensure that an injured or sick arrestee receives the appropriate medical attention. Suspects might think that they have no access to medical care simply because they find themselves locked in a holding cell. On the contrary, a suspect should tell the police they are injured. Then the police will either call for an EMT, or take the suspect to the hospital.

Do understand bail

Bail is an amount of money that, if required by the court, an arrestee must post in order to be released. Soon after a person is arrested, a judge or magistrate determines whether bail will be set, and if so, in what amount. The key factor to this determination is whether the arrestee is considered a flight risk. If the court determines that the arrestee is likely to run, then the judge will not set a bail and instead keep him/her incarcerated pending the outcome of the criminal prosecution.

The judge will release the arrestee on their own recognizance if she feels the arrestee will voluntarily return to court. If, however, the judge finds that the person is moderately likely to flee, then she will set bail. The sum is only returned to the suspect upon completion of the criminal prosecution. Should a suspect post bail and then run away, the bail is forfeited, and the money kept by the municipality. In determining a person’s likelihood to flee, courts will look at a person’s ties to the community. The more a person can establish a connection to the municipality of the arrest, the higher the likelihood of either being released or having a low bail set. An arrestee should stress community ties, including local employment, family in or near the municipality, volunteer activities at local charities or organizations, etc.

Do understand the arraignment process

The arraignment is the criminal proceeding where a suspect is informed of the charges being brought against him or her. The Sixth Amendment protects arrestees from an extended stay in police custody without being told the reason for detention. Therefore,if a person is arrested and taken into custody, the arraignment usually takes place within a day or two of the arrest. The arraignment document, called an indictment or information, must indicate the crimes charged and include a factual description of the suspect’s alleged criminal actions. The arraignment also triggers an arrestee’s right to an attorney. If the suspect cannot afford an attorney, he or she will be informed of the process by which one can apply for a public defender.


Don't

Do not say anything, and do not try to talk your way out of an arrest

Once a person has been arrested, or even called into the station for questioning, the police are looking to fulfill one objective: collect evidence to help prosecute that person. Silence is golden, and in fact crucial to protecting the rights of the arrestee.

A person is only required to provide three small pieces of personal information: 1) name; 2) address; and 3) date of birth. Police will try to get a person to confess, completely or partially, by claiming that if the person comes clean, then the prosecutor will take it easy or even let them go. These are lies, plain and simple. While there are scenarios where suspects can cooperate with law enforcement, that is a complicated process involving the explanation and waiving of a person’s rights. Police do not offer such deals in the hours after the arrest without an attorney present. As one may have heard, “anything you say will be used against you”, so better to not say anything at all.

Do not listen to a police officer who says you don’t need an attorney

The police-suspect interrogation is not a level playing field. Police officers are trained interrogators who will say anything to strengthen the evidence in their case. The police are allowed to lie to suspects and even claim to have evidence which they do not have. (e.g. “we have surveillance film of you in the act of the crime.”) Police may even suggest that having an attorney will make a person worse off. All of these claims are false. Criminal defense attorneys will protect a suspect’s rights and are familiar with police tactics.  It cannot be overstressed that one should ask for an attorney and ignore any argument to the contrary.

Do not believe the myth of the right to a phone call

Although many police stations have pay phones, there is no constitutional right to a phone call. A person can ask the police for the opportunity to make a phone call, but the individual officer or local procedural guidelines will determine whether or not the request is granted. Cell phones are not much help as the police often confiscate cell phones as potential evidence or voucher them for safe keeping along with the rest of a suspect’s belongings at the time of arrest. Make the request, but don’t be too surprised if it is denied.

Do not assume lower degrees automatically indicate a misdemeanor classification

Many charges indicate both the name of the violation and the degree of the offense. However, there is no correlation between the number of the degree and the classification of the offense. A low 3rd or 4th degree murder is most likely still a felony while 1st or 2nd degree harassment could be a misdemeanor. Don’t be scared by a low degree and don’t grow overconfident with a higher degree. The crucial question is whether a person is being charged with a felony, misdemeanor or violation.

Do not think “why should I be quiet if I was arrested for no reason?”

The answer to this question is because once an arrest is made, the police will not simply let a person go. There is a time and place to deal with the injuries suffered as a result of what is known as a false arrest and false imprisonment. The hours after the arrest are not the time to threaten such a lawsuit. Those are civil actions against the municipality or State. The civil complaint process must be started in the months after the arrest. Once the police have made an arrest, they are not going to “undo” the arrest no matter how convincing the argument. The civil false arrest complaints are separate from the criminal proceedings and should be discussed with an attorney as soon as possible after arraignment.


Summary
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When you are arrested for a misdemeanor crime, especially for the first time, there are basic steps you can take to help protect your rights. Silence is golden as once an arrest has been made, police are looking for confessions and not excuses. Additionally, ask for an attorney as early as possible to halt any police interrogations. These steps, along with the others described above, can help a person after an arrest.


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Judah Fuld, EsqAttorney

Judah Fuld practices criminal defense and civil litigation in New York and New Jersey, before both State and Federal courts. He handles legal matters including felony and misdemeanor arrests, traffic court summonses, false arrest and police brut...

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