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Beginner's Guide to Getting Arrested

How many ways can a person get arrested or charged with a case? Why do some people get arrested on the spot and others get a warrant? Can you bond out right away? How does bond even work?

Hopefully, you will never need to know the answers to these questions, but explaining the very beginning of a criminal case and what happens seems to be a very common question we field at Colbert Law. It's complicated. It depends on the situation. But, a lot of the time "arrests" fall into a couple of different categories.

ar·rest

əˈrest verb
To seize (someone) by legal authority and take into custody. (ex. "the police arrested him for possession of marijuana")
A person can be arrested by being taken into custody, which may or may not mean jail. It has to be more than a simple investigation, so just stopping and asking questions isn't an arrest, but it doesn't necessarily require an officer to take you to jail. There's more complicated information about being unarrested, but we can save that for a later post.
Ultimately, it results in a Criminal Case being opened by the Clerk of Courts which creates a Public Record.

The Non-Arrest Arrest... a.k.a.the "Notice to Appear" (NTA) & Friend (Criminal Traffic Citation, or "CT")

There are some circumstances, typically a non-violent misdemeanor (drugs, driving, theft), where a person who has no criminal history, and/or the law enforcement officer exercises their discretion, when a person can be "arrested" with an NTA, or "Notice to Appear" or a CT (Criminal Traffic Citation). In this instance, the officer has observed or has reason to believe a crime has been committed, has collected evidence (physical or observations), and has issued a Citation. If it is a driving offense, the "ticket" doubles as the formal charging document and an Arraignment will be set pretty close to right away. There is no secondary review from the Office of the State Attorney. An officer will write you the CT, send you on your way, and then file it with the Clerk of Courts who opens the case and schedules the arraignment. If it is a misdemeanor other than driving, the officer can issue an NTA. In some instances, a person can elect to pay a fine instead of challenging the Citation. HOWEVER, it does not make it go away. It is still Criminal. It is still a Case. It is still going to be in the Public Records. A date may be on the NTA for Arraignment, and like the CT, the NTA gets filed with the Clerk who Opens the Case, however, there is a secondary review by the Office of the State Attorney. The Prosecutor will review the NTA and can either file an Information (Formal Charging Document) or decide that the case should be dropped via a No Information Notice (indicating no Formal Charges will be filed).

The Warrant, Two Ways

In some instances, an Officer conducts a longer investigation of a crime, or an allegation, before making an arrest. When there is enough facts to support probable cause for an arrest (which means they can make an allegation for each element of a crime), the officer will make an affidavit (sworn statement), take it to a Judge for review, and the Judge will approve or sign-off on the warrant. The warranty-52738_640 Warrant becomes active, and a person is arrested. This is a typical method for cases involving the Sale & Delivery of drugs when a CI (Confidential Informant) is used. In other instances, an Officer conducts a longer investigation, or a shorter one, but doesn't want to make the call. The investigation and any relevant evidence will be compiled into a report, and the report will be sent to the Office of the State Attorney for review. If the Prosecutor who is looking at the file determines there is sufficient evidence to file formal charges, the Prosecutor will file an Information. If the case is for a misdemeanor, the person will typically receive a notice to appear for Arraignment. If this case is filed as a felony, there will be a warrant issued for the arrest of the person. The case will typically NOT APPEAR on the Clerk of Court's website or even the local Sheriff's Warrant site. This is because they don't want people to know about the warrant and take off running from it. (Note: I have still come across warrant information on FDLE's website, even when it doesn't show for the County or Clerk). Once the warrant is executed, the person is arrested, the case information will then appear on the Clerk's website and the case will be set for Arraignment.

The Standard, Run of the Mill Arrest

It can be for a misdemeanor or a felony, but typically an arrest happens when an officer sees an handcuffs-146551_640actual crime take place (drug possession, driving with a suspended licence, etc.) or collects enough evidence to support probable cause for an arrest (statements from witnesses, photographs, statements from the suspect) and no further investigation to (just) make the arrest is required. From there, depending on the case, bond can be set and a person can immediately start working on bonding out of jail. If there is a victim involved with a personal or family relationship with the defendant, the arrest can be categorized as "domestic" and the defendant will have to see a Judge at Initial Appearances (IAs). This is because it may be necessary to put a "No Contact" order in place between the suspect and the victim. The law seeks to protect victims of domestic violence and will err on the side of caution. If an Arrest is made where the defendant is taken to jail, the arrest report goes to the Prosecutor's office for review. The Prosecutor will decide whether the charges that the person was arrested for can be formally filed. This means that it is possible that a person can be arrested by law enforcement, but there is not enough evidence to file formal charges OR the facts do not show that a crime was actually committed.

To Post Bond, or Not to Post Bond?

If a person is arrested and bond is set, the bond should be at an amount that an individual can afford. A person can either pay the full amount themselves or use a Bail Bondsman. If a Bail Bondsman is used, they typically require 10% of the bond amount and it is usually non-refundable. Bond is insurance - ensuring that a defendant will show up for court when facing criminal charges. When the case is over, if it's dropped or won, the bond is released in full to whoever posted it. If there is a Plea or Sentence, the bond will be applied to the fees and costs first (if a cash bond is posted instead of using a Bail Bondsman) and the remaining balance will be returned to whomever posted it. courtroom-144091_640 If bond isn't posted right away, a defendant will see a Judge at Initial Appearances. The Judge, depending on the charge and the history of the Defendant, can order the Defendant be released "ROR" or Released on their own Recognizance and will not have to post bond. The Judge can also add an additional condition of Pre-Trial Release ("PTR"), which means they may not have to post bond, but will be required to check-in with a PTR Officer until their case is closed. Unless the charge is a Life Felony, where a suspect is not entitled to bond at all, the Judge can review the charges at IAs and may modify the bond. If the Judge leaves bond in place, reduces it or raises it, and a person does not bond out, the Prosecutor will have 33 days to file formal charges. If formal charges, or an Information, is not filed, a Motion (formal request) can be filed to have the person released ROR. If a person bonds out, the arrest report is sent to the Office of the State Attorney. The Prosecutor has up to 90 days to file formal charges for a misdemeanor and up to 175 days to file formal charges for a felony.

Remember, even if a case is dropped, the PUBLIC RECORD still exists. If you have questions about an arrest or warrant, contact Colbert Law at (407) 705-3220.