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Arrest


There are certain things you should know in the event that you, or a loved one, find themselves in the clutches of the criminal justice system.  This can be a frightening ordeal, in which the police have the upper-hand.  Follow these simple, basic rules, and you could avoid making your case worse, and make it easier for your lawyer to do his/her job.

 

1) YOU HAVE THE RIGHT TO REMAIN SILENT... USE IT!

You do not have to give any information regarding the facts of your case to the police or anyone. Any facts that you disclose will be used against you and will help the police prosecute you.  Even the smallest bit of information revealed could significantly impact your case. For example; you may think it is harmless to explain your side of a story, especially if you feel that you are innocent, but know that by doing so, you are inherently placing yourself at the scene of a potential crime, and admitting that you were involved in some way. The better approach would be to simply state to the officer that you want to tell your side of the story, and are willing to help, but only if you’re attorney is present.  If you have been arrested, simply insist on having your lawyer present and remain silent until he/she arrives.

2) ASK FOR A LAWYER!

This is the single most important thing you can do if you are arrested. Once you ask for a lawyer, the police are not allowed to ask you questions regarding the facts of the case. Having a lawyer present is your Constitutional right; all you have to do is ask!  If you don’t know a lawyer to call, ask for a phone book and look one up.  Some attorneys have a 24-hour emergency hot-line so you can be put in touch with a lawyer after hours and on weekends.  It’s best to have a call back number of the police station handy in the event that the attorney cannot be reached immediately.  If you cannot reach a lawyer, REMAIN SILENT until you can consult with one.

3) BEWARE OF COMMON POLICE TACTICS!

It is the duty of the police department to investigate the crime in which you are potentially being charged with.  Part of the investigation requires police to speak with eye witnesses and potential co-defendants.  If you are arrested with a co-defendant, police will often try to pin you against each other. It is not illegal for the police to erroneously inform you that your friend has "spilled the beans" and told them that you were responsible for a crime. This is a common tactic to make you talk, as it will invoke the primal urge to speak up against a potentially false accusation. When anything like this happens, just remember rule #1; remain silent and ask for a lawyer.

4)  I’M ARRESTED, NOW WHAT? 

You've been silent, you asked for a lawyer, and even so, you’re getting booked, processed and charged with a crime. What happens to you now? Well, you could be charged with a Violation, a Misdemeanor, or a Felony.

A VIOLATION carries a fine (typically up to $500.00), but no jail time.

A MISDEMEANOR carries a fine of up to $1000.00 and/or up to one year in jail.

A FELONLY carries a fine of $1000 or more and/or more than one year in jail.

If you are given a violation, then you will most likely be released from the police department with a summons to return back to court to answer for the violation. Typically, you are not entitled to a lawyer (or a public defender) on a simple violation, but you are always free to bring one with you, at your own expense.

If you are charged with a misdemeanor or felony, you will typically be held at the police station until the next morning and brought to the courthouse for an arraignment. An “arraignment” is when charges are formally brought upon you by the Court, and bail will be set. In some cases, you may request a “Bail Commissioner” or “Justice of the Peace” (the titles are used interchangeably) who will come to the police station and arraign you outside of normal Court hours, for a fee ($50 before 11pm, $200 after). If you are arrested on a weekend, it is very likely that you would be arraigned by a Bail Commissioner.

At the Court arraignment, you either plead "Guilty" or "Not Guilty". If you do not have a lawyer present for this, or you do not know what to do, it is usually best to plead "Not Guilty" and then seek immediate legal help.   Even if you are guilty, do not be afraid to plead “Not Guilty”.  This is the only way you can explore your case options, and the Courts expect that you will take this option; otherwise you will be sentenced on the spot, without the benefit of counsel.

5) WILL I BE RELEASED? 

Oftentimes, when someone is arrested, they are later released on bail, though some situations require the defendant to be remanded to the prison.  There are certain types of bail that you should be familiar with. In any bail situation, if you are released, you promise to keep the peace, be of good behavior, show up to your scheduled court dates and not get arrested again. Failure to do so could result in your bail being revoked, and you will wait in jail while your case is pending:

a) PERSONAL RECOGNIZANCE: This is your promise to return to the court on your scheduled court date, without being required to pay any money or post any property to secure your release. Remember that you still need to abide by the terms and conditions of your release, even though no money is paid.

b) CASH BAIL: The judge will require you to pay a certain sum of cash to secure your release.

c) SURETY BAIL: If surety bail is set, then you are required to post 10% in cash, or 100% in property to secure your bail.  For this type of bail, you are usually allowed to hire a bondsman to post the bail for you, for a fee. For example; if your bail is set at $10,000.00 “with surety”, then you must pay $1000.00 in cash, or approximately $500.00 with a bondsman.  There are other legal ramifications to surety bails that your lawyer can counsel you on prior to your decision to use or not use a bondsman.

d) HWOB (HELD WITHOUT BAIL): There are certain charges in which you are not entitled to bail. These charges include capital offenses (such as rape, robbery, murder), and violent drug crimes (such as possession with intent to deliver and manufacturing). You may also be HWOB if you have violated your bail or a previously imposed sentence of probation.  In the instance where you are HWOB, you are entitled to a hearing within 10 business of your arraignment. At that time, a judge will determine whether bail should be set or whether you will remain in jail while your case is pending.

So, what happens now that I'm arraigned (formally charged)? 

 

If you are charged with a misdemeanor, you will typically have a court date within two weeks or so. Before this date you should either apply for a Public Defender, or hire a private lawyer. The pre-trial court dates are for your lawyer and the prosecutor to exchange evidence, discuss the merits of your case and fashion a possible resolution. This may require several court appearances, depending on the complexity of your legal issues. Once all of the discussions are over, and assuming that your case is not dismissed as a result of your attorney’s zealous representation, you must decide whether you are going to make a deal and dispose of your case, or proceed to trial.

You always have the right to a trial! Your lawyer will advise you as to what is in your best interest given your particular facts and circumstances. Remember that there are no jury trials in Rhode Island District Court. If you proceed to trial in District Court, you will be tried by a judge sitting without a jury. That does not mean, however, that you have no right to have a jury hear your case.  If you would like a trial by jury, your lawyer may request that your case be moved to Superior Court where you will be able to have a jury trial.

Most people, however, opt to keep the case is District Court.  The reason for this is that Rhode Island law allows a defendant in District Court to appeal the case to Superior Court, after trial, from any verdict or finding of guilt.  So, if you lose your trial, you may appeal your case to Superior Court and get a trial "de novo". That means you will have a brand new second trial in Superior Court, with a jury if desired, almost as if the first District Court trial had never happened.

Now, if you are charged with a felony, the procedure is a bit different.  After your arraignment, your case will either be reviewed by the Attorney General's Office for charging, or proceed to the Grand Jury for indictment.  The Grand Jury is comprised of 16-24 people who hear only the prosecutions version of the case.  Those jurors must return what is called a “True Bill”, meaning that the jurors feel that there is enough evidence for your case to proceed to Superior Court.  The Attorney General’s Office has six months to from the date of your arraignment to charge your case by either information or indictment.

Once your case is informationed or indicted, you will proceed to Superior Court where you will be re-arraigned on the felony charges and assigned a court date to discuss your case with the judge and a member of the Attorney General's Office. At your arraignment, you will be assigned a PAC (Pre-Arraignment Conference) date or a Screening date, depending on which court your case will be heard in.  Once your case is ready to proceed, your lawyer will speak to the prosecutor prior to your Superior Court arraignment to discuss disposing of the case. If no agreement can be made, then your case proceeds to Superior Court. From there, the process is similar to District Court in which your lawyer discusses the case with the judge and prosecutor. Once discussions are over, you may accept a plea agreement or proceed to trial. Unlike District Court, however, there is no "de novo" appeal if you lose. Your lawyer can advise you on any appellate rights you may have at that time.

What happens if I plead or am found guilty? 

The best-case scenario is an outright dismissal of your charges.  That can and does happen.  However, it is very common for a defendant to accept a “deal” rather than taking the chance of losing at a trial.  Weather you accept a deal or lose after trial, there are several kinds of sentences that you will be exposed to. 

If you have either accepted a plea (guilty or nolo contendere) or have been found guilty after trial, you will be sentenced on your case. Your lawyer will be allowed to make a sentencing argument on your behalf. Here is a brief list of common sentencing possibilities. In all cases, fines and costs may be added at the judge's discretion. If a fine is imposed, it is considered a "conviction", so it is important to consult a lawyer prior to accepting any fine:

  1. FILING: Misdemeanor cases may be “filed”, that is, set aside for a period of time, and if you remain out of trouble during that time, you will be eligible to have your case expunged off of your record at the end of that period.  A filing is not a conviction, but often does require the defendant to plead Nolo Contendere (no contest). 

     

  2. DIVERSION: The more minor felony cases may be sent to the Diversion Program.  This is similar to a “filing” on a misdemeanor case, but can require the defendant to do community service, counseling, pay restitution, or any other condition that the Court or the program deems appropriate.  Once the diversionary period has elapsed (typically a year or less), the case is dismissed and may be expunged.

     

  3. DEFERRED SENTENCE:  Some felony cases are eligible for a “Deferred Sentence”, which is a five-year long period in which the Court refrains from sentencing a defendant.  This type of sentence requires a plea of Nolo Contendere.  If the defendant stays out of trouble for that five-year period, the charge may be eligible to be expunged from the record.

     

  4. PROBATION: This option is available on both misdemeanors and felonies.  You will be required to sign and obey a set of written conditions set forth by the probation department. You may also be required to check in with probation as your probation officer sees fit. This is referred to as "supervised probation". It is important to note that if you are found guilty after trial and given probation, this is a conviction. A pre-trial plea to probation is not a conviction after the probationary period is over.

     

  5. SUSPENDED SENTENCE: With a suspended sentence, the judge will sentence you to jail time, but will "suspend" that sentence if you stay out of further trouble and abide by the conditions of the Court. You will not have to serve that time unless you violate those conditions or are charged with another crime.

     

  6. HOME CONFINEMENT:  Sometimes the Court will agree to have you serve your jail time at home.  This is referred to as “Home Confinement”.  If you are sentenced to home confinement, the Court will assign a review date to ensure that you, and your choice of residence, are eligible for the home confinement program.  Provided that you are approved, you will appear on your review date and surrender yourself to the Court and be brought to the prison for an overnight stay (in certain circumstances that stay can be waived).  You will be released the next day with an ankle bracelet and a box to set up at home.  It is very important to remember that if you violate any term of home confinement, you will be immediately brought to the prison to serve out the rest of your sentence.

     

  7. JAIL:  This is the last resort.  If all else fails you may be required to serve time in jail.  This is rare for those who have little to no criminal record, however, the severity of the crime, and the defendants record are factors to be considered when the Court fashions an appropriate sentence.  If you are sentenced to jail, you will be brought to the prison to serve your sentence immediately after your plea, in most cases.

 

What happens if I get arrested after my sentencing? 

If you are on a filing, diversion, deferred, probation, suspended sentence or home confinement, you promise the Court to keep the peace, be of good behavior, and not get arrested for the duration of your sentence. If you fail to do so, you are in violation of your sentence and could be required to serve all or part of the full sentence in jail. 

 


 

DISCLAIMER: The information in this article is presented for reference only and is not intended to be legal advice, or create an attorney-client relationship. Consult with Mesiti Law Offices regarding the particular facts of your legal issues.

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