Getting arrested, for any reason, is a frightening experience. For most individuals, the criminal justice system is an extremely foreign system; most people do not get arrested regularly enough for the entire process to make perfect sense. Ultimately, the process is nothing like what you see on Law and Order, or any other television show that attempts to depict the process to an audience of lay-persons. This article will briefly address: (1) the arrest process, (2) bail rules, and (3) the arraignment process. While arrests are scary, the attorneys at NC Record Expungements are here to assist in demystifying the entire process. At the end of the day, the criminal process begins the moment you are arrested, and it is important to navigate the criminal system properly from the outset if you want the best chances at a favorable outcome to your case.
- How Does a Criminal Case Get Started?
The best place to start, as with most things, is the beginning. How does a criminal case get started? The short answer to this question is that criminal cases get started, in earnest, in one of three ways: (1) a citation, (2) a criminal summons, or (3) a warrant for an individual's arrest.
- A Citation
When a police officer has “probable cause” to believe that an infraction or a misdemeanor has occurred, the police officer will issue a citation to the individual whom they believe has committed the misdemeanor or infraction. The vast majority of people are familiar with the citation process, as the vast majority of people have received a ticket for something (a speeding ticket, a jaywalking ticket, and a littering ticket are all forms of a citation, which begins the criminal process for the violations the individual received a citation for). As a general rule, all offenses are offenses a person can be arrested for. The citation, which is issued at the discretion of the officer, operates as an alternative to an arrest; in exchange for the promise of the person being cited to show up to Court (or resolve the citation in another way) on the stated date, the police officer forgoes the arrest. However, if the individual fails to honor their end of the bargain, the Court may issue what is referred to as an “Order for Arrest.”
- Criminal Summons
A criminal summons is similar to a citation in the sense that it is generally issued in lieu of an arrest. If either an officer or a private citizen has probable cause to believe an offense occurred, the officer or private citizen may present their case to a magistrate or anyone else in the jurisdiction who is authorized to issue warrants for arrest. If the magistrate or other official is persuaded that the officer or citizen has probable cause that the stated offense occurred, they will issue a criminal summons. It should be noted that warrants for arrest are also issued in this manner, and are more likely to be issued in conjunction with a criminal summons if the stated offense is a serious one (a warrant for arrest is unlikely to be issued where a private citizen presents probable cause that an individual always speeds through their neighborhood, but it is likely to be issued if an officer presents probable cause that you ae selling illegal firearms out of your trunk in that same neighborhood).
- Arrest Warrant
At this point, it is important to note that nothing in the criminal justice system can begin without probable cause that a crime has been committed by the individual being brought into the criminal justice system – you can be issued a citation, you cannot be the subject of a criminal summons, and you certainly cannot be the target of an arrest warrant. The warrant for arrest is a document that details which specific crimes an individual is accused of and provides police officers the authority to arrest the individual for those crimes. Once arrested, the individual is held to answer against the charges laid against him.
The rest of this article will operate on the assumption that the person reading this has been arrested and will discuss what happens at this stage of the process.
- I Have Been Arrested, What Next?
For purposes of this article, we will assume that one of 3 things has occurred: (1) You received a citation, but failed to show up on the stated date, and have been arrested pursuant to an “Order for Arrest”; (2) you have been arrested pursuant to a “Warrant for Arrest” issued in conjunction with a “Criminal Summons”; or (3) you have been arrested pursuant to an arrest warrant. The question most people have when faced with this situation is “what happens next?”
Once you have been arrested, you are generally brought before a magistrate, whose job is, among other things, to: (1) set the conditions of your release; (2) inform you of the methods you may utilize to obtain your release; and (3) in the event you were arrested without a “Warrant for Arrest”, determine whether the arrest was supported by probable cause that you committed the crime you have been arrested for – if the Court determines that probable cause exists for an arrest not made pursuant to a “Warrant for Arrest”, the Court will then proceed to inform you of the charges against you as well as your right to communicate with your attorney.
“Conditions of Release”, or bail, generally fall into 4 broad categories: (1) A written promise to appear in Court on a given date; (2) an unsecured bond; (3) a secured bond; and (4) a custody release. At the outset it should be noted that absent extraordinary circumstances, you have a Constitutional right to pretrial release in the form of bail.
- What is Bail?
This section will discuss the critical information you need to understand about bail in North Carolina. Bail, which is interchangeable with “bail bond”, is the amount of money you must pay in conjunction with the promises you are required to make in order to obtain pre-trial release from jail until the resolution of your criminal case. As a general rule, you must be brought before a magistrate to set bail and other conditions for release within 48 hours of your arrest (there are exceptions to this rule [cases involving murder and domestic violence], but the magic number is 48 hours in most cases). It is in your best interest to have a skilled attorney with you at these hearings, as it can have a profound impact on the outcome of the hearing.
EXAMPLE: Dan has been arrested, without a warrant, for possession of cocaine. Since this is arrest was not made pursuant to a “Warrant for Arrest”, the Court must first determine whether there was probable cause for the arrest in the first instance. Dan's attorney uncovers that Oran Officer never actually saw Dan in possession of Cocaine, but actually arrested him because Sam Snitch said Dan was in possession of cocaine. On these facts, Dan's attorney argues that the underlying arrest was not supported by probable cause, and therefore the entire case should be thrown out. If the judge agrees, Dan just avoided a long stressful process. Alternatively, if the judge finds there was probable cause for the underlying arrest, Dan's attorney can argue for a lower bail amount based on a number of factors.
So what types of bail bonds exist out there?
- A Written Promise to Appear on a Given Date
In all circumstances where an individual will be released prior to trial, that person must promise the Court that they will attend all future hearings. In less severe cases, a simple written agreement may be all the assurances the Court requires that a person will honor their word.
- An Unsecured Bond
In this situation, the Magistrate will set a total dollar value for a ball bond, which the individual is not required to pay prior to release from jail. However, if that individual fails to appear for a Court hearing, the Court will enter a money judgement (the amount of the bail bond) against that person. The practical effect of this judgment is that if the person is arrested again, they will need to pay both the judgement and the new bail in full before they can be released from custody.
- A Secured Bond
The type of bail bond, which most people are familiar with, is the secured bond. In order to obtain a pre-trial release from custody, the individual must pay the full bond amount. Bail bond companies exist to assist individuals who do not have that kind of money available; frequently accepting collateral as security for a loan in the amount of bail.
- What if I Violate the Terms of My Bail?
In the event that you fail to honor all the terms of your bail (failing to appear in Court on a given day, or a condition of bail that you remain 100 yards from the victim at all times), your bail could be revoked, and the Court may issue a “Warrant for Arrest” against you. Further, the Court may neglect to grant bail (remember there are exceptions to your Constitutional right to obtain bail) or the Court may choose to grant bail but with additional burdens on the bailee.
Getting arrested is a frightening experience, but it doesn't have to be. With the skilled attorneys at NC Record Expungements by your side, we will zealously argue against a finding of probable cause for an arrest in the first place. Failing that, we will vigorously advocate for the least intrusive options when it comes to bail. When it comes to criminal proceedings, it's difficult enough; we will fight for your freedom.