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Nov 02, 2018

What Should I Do if I Am Arrested?

It may never cross your mind to ask, “What should I do if I am arrested?” You may think that getting arrested only happens to other people, and won’t happen to you. If so, it’s time to look at the numbers and think again.

According to the California Department of Justice’s “Crime in California” report, there were close to 1.1 million arrests in California in 2017. Of those, 56,249 were arrests of juveniles. More than 285,000 adults and almost 20,000 juveniles were arrested for felonies. That left more than three-quarters of a million adult misdemeanor arrests and more than 34,000 juvenile misdemeanor arrests. Those sheer numbers are staggering. So much so that it’s perfectly appropriate for any Californian to ask, “What should I do if I am arrested?”

Drilling Down on Felony Arrest Accusations

If you’ve been arrested for a felony, you’re likely being accused of a violent offense, a property offense, or a drug offense. Under the umbrella of violent offenses, you may be charged with homicide, rape, robbery, assault, or kidnapping. According to the California Department of Justice, the vast majority of arrests – roughly 80 percent – for violent offenses are for assault. Another 15 percent are for robbery.

If you’re charged with a property offense, you’re being accused of burglary, theft, motor vehicle theft, forgery or related crimes, or arson. Close to 40 percent of property offense charges are for theft, about 30 percent for burglary, and about 25 percent for motor vehicle theft. When it comes to drug arrests, you may be charged with narcotics-related offenses or more general “dangerous drugs” offenses. In 2017, about 57 percent of arrests were for dangerous drugs and 32 percent were for narcotics.

About a quarter of all adult felony arrests are of another nature, typically weapons, driving under the influence, or hit-and-run charges. There’s no doubt about it: if you’re arrested for a felony in California, it pays to know the answer to the question, “What should I do if I am arrested?”

Misdemeanor Arrest Accusations in California

If felonies are one piece of the pie when it comes to California arrests, then misdemeanors are the other slice. In 2017, close to a quarter of all misdemeanor arrests in California were drug offenses. Another quarter of misdemeanor accusations were grouped under the umbrella of “other.” Almost 16 percent were for driving under the influence and another 8 percent for drunkenness. Close to 10 percent of misdemeanor charges were for assault and battery, while the remainder of misdemeanor arrests were for a hodgepodge of offenses, including burglary, petty theft, indecent exposure, prostitution, disorderly conduct, disturbing the peace, vandalism, and trespassing. While some people are quick to dismiss misdemeanor arrests as trivial, it’s important to note that criminal complaints were sought in approximately 95 percent of all misdemeanors. In other words, prosecutors sought a conviction in more than 9 of 10 cases. That’s a sobering statistic.

Intersections of Race and Gender in California Arrests

Unsurprisingly, 8 out of 10 of those arrested for felonies in California are men. For all classes of felonies, men vastly outnumber women arrestees. Women make up about a third of arrestees for felony forgery and check crimes, while men make up well over 90 percent of those arrested for rape, sex offenses, and weapons offenses.

Given the well-documented racial disparities in the criminal justice system, it should not come as a surprise that non-white Californians are arrested for felonies at a much higher rate than white Californians. According to the California Department of Justice’s report, 20 percent of those arrested for felonies in 2017 were African American, although only about 6 percent of Californians are African American. Conversely, only 31 percent of those arrested for felonies were white, although 72 percent of Californians are white. Hispanic arrestees were slightly overrepresented, at 42 percent, when 39 percent of Californians identify as Hispanic or Latino.

When it comes to misdemeanors, the racial disparities are similar, with there being approximately 39 percent white, 40 percent Hispanic, and 15 percent African American arrestees in 2017. There was slightly more gender balance for certain types of misdemeanor charges. For example, there was roughly a 60-40 split among men and women for burglary, petty theft, checks, and gambling misdemeanors, and a 40-60 split for prostitution misdemeanors.

How Felony Arrests are Resolved

One of the answers to the question, “What should I do if I am arrested?” is that you should understand how California arrests are ultimately resolved. According to the California Department of Justice report, police release fewer than 4 percent of those arrested for felonies. In 18 percent of felony arrests, the prosecution either chooses not to file charges or resolves cases, typically through plea agreements. The rest of those arrested for felonies go to court. That path leads to approximately 12 percent of arrestees having their cases dismissed or being acquitted of the accused crimes. However, two-thirds of arrestees – 66 percent – are convicted. Looking at just those who end up in court, 84 percent are convicted and 73 percent end up serving either jail or prison time. That should give pause to anyone arrested of a felony.

Before the Arrest: Knowing Your Rights

You may ask, “What should I do if I am arrested?”, but you should know that you have rights even before an arrest. Those rights can dictate what you say and do when you have an encounter with law enforcement. For example, if the police come knocking at your door, you are not obliged to answer the door. Without a search or arrest warrant, they will simply leave. If you suspect that they do have a warrant, leave using another entrance and meet them outside of the front door. Then, ask them for a copy of it the warrant. The police are required to give it to you.

If you happen to answer the door, you are not obligated to let the police into your home. In fact, you should specifically tell them that they do not have your permission to enter. This is true even if they are asking about your roommate, partner, or child. Know that if you give the police permission to come in, you are giving up your rights.

In addition to having a warrant or having your permission to come inside, police can come into your house if they are investigating a crime and believe that evidence will be destroyed. They can also enter your home if they can see something illegal through the window or when you open the door. Finally, if they believe someone is in danger or that there is an emergency, they can come into your house.

If you are stopped by the police, you can and should ask if you are free to leave. If they say yes, then quietly and calmly walk away. If they say no, that you are under arrest, then it is your right to know why.

In California, you are not required to show your identification to police unless you’re pulled over while driving or you’ve been arrested. Refusing to show your ID can lead police to arrest you, but it will be a wrongful arrest. It’s also important to note that you can withhold your consent to be searched. Consenting to a search can have adverse consequences should your case go to trial, so you should clearly state that you do not consent to the search (though not physically resisting it). You and your belongings may be searched anyway, but you are on the record as saying that you did not consent to the search.

If a police officer stops you, it’s important that you don’t try and run away. If you’re a person of color and/or are undocumented, running could put you in harm’s way. Police could assume that you have a weapon and could use deadly force. In addition, if your case goes to trial, the jury could be told that you ran, and that running is evidence of guilt.

As everyone who has ever watched a police procedural on television knows, you have the right to remain silent – and you should – because anything you say can be used against you. When you choose to remain silent, you should say as much to the police officer.

If someone is with you, they should try and take a video of your encounter with the police. Afterwards, they (and you, if you’re able) should document everything they can remember, including the names of the law enforcement agencies, the badge numbers of the officers, the interview questions, and anything else they can remember. They should share these contemporaneous notes with

Asserting Your Rights After the Arrest

If you are arrested, the first thing to keep in mind is not to resist. Getting into a police confrontation can be terrifying. While you may be innocent, touching a police officer or otherwise resisting arrest can lead to you getting injured and to assault charges being filed against you.

Once arrested, tell the officer that you are asserting your right to remain silent. You don’t have to explain why and you shouldn’t succumb to the temptation to explain yourself when they taunt you with, “There’s no harm in talking to us if you have nothing to hide.” They will use what you say against you. In fact, they’ll lie to you in order to get you to talk, going so far as to say they have evidence that you committed the crime or that your friend has pointed the finger at you as the perpetrator. The police are not on your side, so don’t say a word.

After telling the officer that you’re asserting your right to remain silent, it’s time to call a lawyer. Keep in mind that the authorities are required to allow you to make a local phone call, and that they aren’t allowed to listen in on your phone call. When you call your attorney, tell them the basics, and also let them know if there is an emergency situation that needs to be handled, such as ensuring that your children are cared for or gaining access to medical care or medications. Above all, do not make any decisions about your case, speak to the police, or sign papers without your lawyer present.

Finding a Lawyer that’s a Good Fit

Another answer to the question, “What should I do if I am arrested?”, is that you should find an attorney who is a good fit for you. If you don’t already know a criminal attorney, you can find one by asking friends or relatives for a referral, searching for an attorney online, or looking in a legal directory. You should ask your prospective lawyer if they have had experience handling charges similar to those you’re facing, and ask about the outcomes of those cases. While no two cases are the same, your goal is to find a criminal lawyer who is familiar with your county’s courts and prosecutors, who has experience with plea agreements, and who has a good track record at trial. As applies to your case, the attorney should be willing to challenge the admissibility of a search and seizure, argue that there is insufficient evidence for the prosecutors to bring your case to trial, or that justice would be better served if you made restitution, went into a diversion program, or pled to a lesser crime.

If you’ve been arrested in California, it’s important to understand that the odds – and the statistics – are stacked against you. That’s why it’s crucial to hire a criminal attorney who you can trust to mount a rigorous defense. Ultimately, of course, you want to avoid prosecution altogether. But if that’s not in the cards, your attorney can help to ensure that your case is resolved with the best possible outcome.