LEGAL FAQS

CRIMINAL LAW FAQS

1

Q. If the police stop me, am I considered to be under arrest?

A. Just because you are stopped by the police for something does not mean you are under arrest. An arrest generally refers to the point at which you are taken into custody, meaning you are unable to freely leave the scene.

2

Q. Do police need a warrant to arrest me?

A. Police usually don't need a warrant to arrest you -- they can arrest you as long as they have probable cause to believe you have committed or are about to commit a crime. However, an arrest made at your home generally does require a warrant unless there's a belief you will run away, destroy evidence or harm someone.

3

Q. What should I do if I am arrested?

A. If you are arrested, don’t try to run away or resist, as this will only make the situation worse and lead to additional charges. Though it may be difficult, try to remain calm and not get into an argument with the officer. Be careful about your body movements, and don't threaten to file a complaint against the arresting officer. If you feel the officer has violated your rights, you can file a formal complaint later.

4

Q. If the police stop me, do I have to answer their questions?

A. Everyone has a constitutional right to remain silent. Generally, you are under no obligation to talk to police officers even if you are just being detained for something, are under arrest, or are in jail. It's advisable to consult your lawyer before answering any questions.

There are some exceptions to this rule. In some states, you are required to give your name if asked by the police. Also, police can require you to provide your license, registration and proof of insurance if you are pulled over for a traffic violation.

5

Q. If the police stop me and I think I'm innocent, shouldn't I try to convince the police officer of this?

A. An arrest is a very emotional time and can cause you to not think clearly, so it's easy to accidentally say something that hurts your case. You may think you can convince the police officer to let you go, but this is highly unlikely. What is a lot more common is that the person being arrested says something that makes things much worse. Any statement you make will go into the police report and be used against you later. Because of this, it's much better to consult a lawyer before you say anything.

6

Q. What are Miranda rights and when must I be told of them?

A. Miranda rights are those rights when a law enforcement officer advises you that you have the right to remain silent, that anything you say can be used against you, that you have the right to an attorney, and that if you cannot afford an attorney, one will be appointed for you. Miranda rights only have to be read if you are under arrest and being questioned. So if you are not under arrest, a police officer can ask you questions without advising you of your right to remain silent. If you are under arrest but are not being questioned, then you don’t have to be read your Miranda rights. But questioning can occur at any time – at the time of the arrest, on the way to the police station, or at the police station. Before questioning can take place, your Miranda rights must be read.

7

Q. If I’m not read my Miranda rights and police officers question me, will my case be dismissed?

A. Not necessarily. If you were under arrest and questioned by police without being advised of your right to remain silent, statements you make cannot be used against you. In addition, evidence the police obtain as a result of these statements also cannot be used against you. However, even excluding all this evidence, there may still be enough evidence to find you guilty.

8

Q. If I am stopped for driving under the influence, do I have to take a blood alcohol content test?

A. In an arrest for drunk driving, the police officer may ask for physical evidence to determine the alcohol content of your blood, such as a blood, breath or urine test. All states have implied consent laws, which are based on the principle that as a condition to obtaining a driver's license, people implicitly agree to take a test to determine their blood alcohol content if they are suspected of drunk driving.

9

Q. What happens if I refuse to take a blood alcohol content test?

A. Laws vary between states regarding the penalties for refusing to take a blood alcohol content test when stopped for driving under the influence. Almost every state imposes administrative penalties, like fines and losing your driver’s license for a certain time, for refusing to take the test. Some states also impose criminal penalties for refusing to take a test.

10

Q. What is the difference between felonies and misdemeanors?

A. In most states, the difference between felonies and misdemeanors involves the length of time for which a person can be put in jail. Misdemeanors are generally crimes that are punishable by less than one year in a jail, while felonies are crimes that are generally punishable by a jail term of more than one year. They are considered to be more serious offenses than misdemeanors.

Some states differentiate between felonies and misdemeanors on the place of incarceration, with misdemeanor crimes being punishable by incarceration in a county jail and felonies being punishable by incarceration in a state prison.

11

Q. Can the police search my home or office?

A. The police generally need a warrant (which is issued by a court) to search your home unless you give them permission to search without a warrant. However, a warrant is usually not needed to search your home where there is an emergency situation and no time for them to get a warrant, like if the police believe someone inside your home is in danger, a person may escape, or evidence is about to be destroyed.

A warrant is also usually needed to search your office. However, if your employer lets the police search your office without a warrant, this is generally okay, even if you don't consent to the search.

12

Q. Should my lawyer be present when the police are questioning me?

A. You have the right to have your lawyer with you when the police are questioning you, and it is strongly advisable to have a lawyer present whenever you are being questioned by the police. Your lawyer is there to protect your rights and interests, and can advise you what to say or not say so that your case is not hurt.

It is important to remember that anything you say can be used against you later. This is not just limited to statements you make to a police officer that are written down or tape recorded. Any statement you make, whether it occurs while you are being detained or arrested, or elsewhere, can be used against you later.

13

Q. To find a defendant guilty in a criminal case, what does the prosecutor have to prove?

A. The prosecutor has to prove the defendant is guilty "beyond a reasonable doubt." This is a higher standard than in civil cases, where a person must prove his or her case only by a "preponderance of the evidence" or by "clear and convincing evidence."

14

Q. Is there a time limit within which criminal charges must be filed?

A. For most crimes, there is a time limit within which criminal charges must be brought. These laws vary from state to state. For some crimes, there is no deadline for bringing charges. For example, there is no statute of limitations for murder. Some states (and the federal government) have expanded the types of crimes for which there is no statute of limitations.

15

Q. Is there a way to clear my criminal record?

A. In some cases, people with a criminal record can have it “expunged,” which as a practical matter will prevent employers, housing authorities or others from receiving information on the criminal record when background checks are conducted. This can be very helpful for people who made a mistake in their past and have made a change for the better and now want a fresh start.

16

Q. What does an expungement do?

A. In broad terms, expungement is keeping a person's criminal record private from public view. However, in the states that allow expungements, the effect of an expungement can vary. In some states, an expungement prevents the general public from obtaining access to a person's criminal record (so it won't show up in background checks), but it does not prevent police and certain other government employees from viewing the sealed court files. In other states, an expungement results in the record being sealed so that even police and other government officials will need to obtain a court order to view it (again, the record will not show up in a background check).

17

Q. What are the rules and requirements for getting an expungement?

A. Laws vary a lot between states regarding when a person with a criminal record is eligible for an expungement, but here are some general principles:

  • If you were found not guilty or a prosecutor dismissed a case against you after you were charged with a crime, you are likely eligible for an expungement.
  • If you pleaded no contest and successfully went through a court-ordered program (such as a drug treatment program in the case of a drug-related offense), some states will make you eligible for an expungement.
  • Some states let people who were convicted of misdemeanors (less serious crimes) be eligible for an expungement.
  • Some states let people who were convicted of certain types of felonies be eligible for an expungment (for those states that do permit expungements for some felonies, laws vary between states about which felonies cannot be expunged).
  • Some states let people who were convicted of certain types of felonies be eligible for an expungment (for those states that do permit expungements for some felonies, laws vary between states about which felonies cannot be expunged).
  • There is often a limit on the number of criminal incidents you have been involved in when determining your eligibility for an expungment.
  • There is often a requirement that you have not been involved in any criminal acts between the matter for which you seek expungment and your exungement request.
  • There is usually a waiting period between the incident for which you seek expungement and the time you become eligible for an expungement.
18

Q. How do I get an expungement?

A. An expungment is a legal process and typically involves a decision by a judge or other officer of the court. The appropriate documents must be filed with the court, and then a judge has to rule in your favor. In some states, expungements are automatically granted for people who meet certain requirements. For people who do not meet the state's requirements -- or in states that do not guarantee expungements even if certain conditions are met -- a judge must rule in your favor. Factors the judge considers when deciding whether to grant an expungement typically include the impact your criminal record has had on your ability to find work or housing, the effect of sealing the record on public safety and, if you are seeking a conviction expunged, whether you have made changes to your life since the crime and are a better person and unlikely to commit another crime.

19

Q. Do I need a lawyer's help to get an expungement?

A. There are specific rules and procedures for obtaining an expungement. Not following these rules and procedures can cause an expungment to be denied. As such, it is important to seek legal help if you want an expungement.

20

Q. What should I do if I believe the police mistreated me?

A. If you think you are mistreated by a police officer, write down the officer's name, badge number and other identifying information. Also try to get the names and phone numbers of any witnesses. You can file a complaint with the police department, and your lawyer can review the facts and advise you if you can make a legal claim.