Former Prosecutor's Tips: Post-Arrest Considerations
Here are some post-arrest considerations to keep in mind.
Initial InformationNo one ever wants to hear the words "You're under arrest" or the unmistakable sound of handcuffs. When that happens, one may ask, "What do I do if I have been arrested?" or "What do I need to know if I get arrested?" Therefore, if you are ever arrested for a criminal offense, here is some information to consider.
o Stay calm and act respectfully to the charging/arresting officer. Follow the officer's instructions and do not resist arrest. You want the officer to tell the prosecutor that you were polite and cooperative at all times. If there are any issues with your arrest, inform your attorney who can address the issues at the proper time.
o A person under arrest has the right to remain silent and does not have to answer any questions from law enforcement.
o Law enforcement may arrest someone if there is probable cause to believe that the person committed an offense. However, the prosecution must prove each element of each charge beyond a reasonable doubt in order for a person to be convicted.
o In North Carolina, a person under arrest may be fingerprinted, photographed and, depending upon the offense as set forth in NCGS Section 15A-266.3A, could be required to provide a DNA sample.
Getting Out of Jail/Bond Hearingo Contact a family member, friend, and/or bail bonds agent as soon as possible.
o A judicial official will conduct a hearing to determine conditions of pretrial release. The procedures are set forth in NCGS Section 15A-534. The judicial official could release a person on a written promise to appear, release a person to a custodian, release a person after setting an unsecured bond, set a secured bond in which the person would have to post bond in order to be released, or place a person under house arrest.
o In order to set a secure bond or require house arrest, the judicial official must find that the person is a flight risk and/or poses a danger to the safety of others. This determination usually results from the person's prior criminal history and/or the nature of the offense. The county may have a normal bond range for each class of offense.
o At a bond hearing, a person should present him/herself in the best possible light. Be respectful to the judicial official and avoid interrupting him/her. Remember that each person has the right to remain silent. Any comment made about the facts of the case during a bond hearing could be used against the person in court.
o If, for example, the magistrate at the jail sets a secured bond, then the defendant (and/or his/her attorney) could request that a district court judge modify the bond conditions and/or bond amount.
o An individual arrested for a domestic violence offense could be held in custody up to 48 hours before having a hearing to determine conditions of release.
o An individual arrested for DWI could be held in custody without bond (for up to 24 hours) until he/she no longer poses a danger to others due to the impairment of his/her mental/physical faculties or could be released to the custody of an adult who is sober/responsible and is willing to be responsible for the individual until the individual's mental/physical faculties are no longer impaired. (In this latter situation, the judicial official may also impose other conditions of release including a secured bond.)
First Appearanceo For individuals charged with a felony, the judge holding a first appearance will inform the defendant of his/her right to remain silent, the nature of the charges, and the right to an attorney (and the right to a court-appointed attorney if the person is indigent.) By this point, the defendant should know the next court date.
o All cases (even high-level felonies) usually start in district court.
Preparing for Court/Plea Optionso Prepare for first court date. (See my Guides regarding court preparation and first-time offenders.)
o Assuming the defendant has a court-appointed attorney or has retained an attorney, the defendant should work with the attorney to determine how he/she intends to plead. The prosecutor may offer a plea deal. Each defendant must determine his/her ultimate goal (whether to fight the charges or whether to accept responsibility and seek a particular sentence). Each case and situation is different and the defendant must decide after consultation with his/her attorney.
o A defendant may plead guilty, not guilty, or no contest (only if the prosecutor and presiding judge consent). Pursuant to Alford, an individual may plead guilty (without admitting guilt) by acknowledging there is sufficient evidence to convict. The defendant would be pleading guilty because it is in his/her best interest to do so.
o Prepare for trial and/or sentencing.
DisclaimerThe information included in this Guide is for informational purposes only. It does not constitute legal advice and, therefore, does not create an attorney/client relationship with anyone.