Misdemeanors vs. Felonies
Felony crimes typically involve drug and narcotics charges, arson, burglary, armed robbery, murder and/or attempted murder, rape and/or sexual assault, kidnapping and aggravated assault and battery. A felony charge is a serious matter that can result in a substantial state prison sentence and the potential loss of certain privileges and Constitutional rights of U.S. citizenship, such as the right to possess a firearm or the right to vote.
Misdemeanors are more serious than petty offenses, such as traffic offenses, but less serious than felonies. Misdemeanors typically result in imposition of such punishments as a fine or a jail sentence not exceeding a year. If a jail sentence is imposed, it is served at a local, city or county jail, rather than a state or federal prison (penitentiary).
General Introduction to Police Procedure
The following instructions are meant to be general guidelines in any encounter between a citizen and a police officer. Generally speaking, the following instructions are guidelines to follow for individuals who ask themselves what they should do if they are stopped by the police.
You should be polite and respectful. Never badmouth a police officer. Stay calm and in control of your words, body language and your emotions. Do not get into an argument with the police. Remember, anything you say or do can be used against you. Keep your hands where the police can see them. Don't run. Don't touch any police officer. Don't resist even if you believe you are innocent. Don't complain on the scene or tell the police they're wrong or that you're going to file a complaint. Do not make any statements regarding the incident.
Ask for a lawyer immediately upon your arrest. Remember the officer's badge and patrol car numbers if available. Write down everything you remember as soon as possible. If you are in a holding cell, ask the police officers at the detention facility to give you a pen or a pencil to write down your freshest thoughts regarding the incident. You should try to compile the names and phone numbers of witnesses to provide to the attorney. If you are injured, immediately take photographs of the injuries, but make sure you seek medical attention first. If you do seek medical attention, be sure to document the name, address and telephone number of any and all medical providers by whom you are seen.
If you feel your rights have been violated, file a written complaint with the police department's internal affairs division or civilian complaint board, but only after you have consulted with an attorney to ensure that anything you say in a written complaint will not subject you to additional criminal penalties and/or fines and incarceration. The general rules are as follows:
- What you say to the police is always important. What you say can be used against you, and it can give the police an excuse to arrest you, especially if you badmouth a police officer.
- You don't have to answer a police officer's questions, but you must show your driver's license and registration when stopped in a car. In other situations, you can't legally be arrested for refusing to identify yourself to a police officer.
- You don't have to consent to any search of yourself, your car or your house. If you do consent to a search, it can affect your rights later in Court. If the police say they have a search warrant, then you should ask to see the search warrant prior to allowing the police to either search your vehicle or your residence.
- Do not interfere with a police officer in the course of his duties or obstruct the police officer in the course of his duties. You can be arrested for any contact either verbal or physical that is characterized as an obstruction of justice or preventing or delaying a peace officer in the performance of his duties.
If You Are Stopped for Questioning
- It is not a crime to refuse to answer questions. However, refusing to answer can make the police suspicious about you. You can't be arrested for merely refusing to identify yourself on the street. However, please be advised that if the police are acting on a tip or what is referred to as exigent circumstances you may be detained for the purpose of determining whether or not you fit the description of any individuals that the police are looking for. Remember that in this situation, anything you say can and will be used against you.
- Police may "pat down" your clothing if they suspect a concealed weapon is on your person. Please remember not to physically resist, but be clear that you do not consent to any further search and verbalize your lack of consent to the police officers. If you are within ears length of any other people, be sure to state your non-consent unequivocally and in a loud enough manner that it can be heard by those around you or in the near vicinity.
- Ask if you are under arrest. If you are, you have a right to know why. In such situations where you believe you are under arrest, but the officer has not specifically stated so, simply ask the officer, "am I free to leave?" If the officer states you are not free to leave then you are under arrest.
- Do not bad mouth the police officer or run away even if you believe what is happening is unreasonable. If you attempt to run away or begin to bad mouth the police officer, this could lead to your arrest.
If You Are Stopped and Questioned in Your Vehicle
- Upon request by a peace officer, show them your driver's license, registration and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause to believe that a crime has been committed by you. Recently, the Court decided that police may look through your vehicle in any location within the passenger compartment where they believe a driver's license or registration may be present to assist them in identifying you as a result of a traffic stop. Therefore, if you want to avoid police searching your vehicle without your consent, be sure to have your driver's license and registration in a location within the vehicle from which you can retrieve it immediately upon request. To protect yourself later, you should make it clear to the police that you do not consent to a search of your vehicle. It is not lawful for police to arrest you simply for refusing to consent to a search.
- In dui cases, if the officer advises you that he is going to subject you to a preliminary alcohol screening device, you should immediately ask the officer whether you have a right to refuse such a preliminary alcohol screening test. If the officer is honest, he will advise you that you have a right to refuse the preliminary alcohol screening test; however, if you do submit to a preliminary alcohol screening test, it does not satisfy your requirement under the implied consent laws to provide an additional breath or blood test once transported to the police station and/or the nearest jail facility. (only on dui cases) If you are confronted with a preliminary alcohol screening test, then simply ask the officer whether you have a right to refuse it. Upon being read the advisement by the officer, respectfully advise the officer that you choose to invoke your right to refuse the test and do not submit to the preliminary alcohol screening test. Do not make the mistake of refusing to submit to the implied consent test of either blood or breath once you have been transported to the police station or the jail for further testing. If you refuse to submit to an implied consent breath or blood test, you will be subjecting yourself to a possible one-year license suspension in the event that the allegation of a refusal is proved to be true in Court and/or before the Department of Motor Vehicles.
- If you are given a ticket, you should sign it, otherwise you can be arrested. You can always fight the case at a later time in Court once you have sought the advice of counsel.
- If you are suspected of a dui and refuse to take a blood or breath test, your driver's license may be suspended (please refer back to section 2).
If You Are Questioned at Your Home or Residence
- If the police knock and ask you to enter your home, you do not have to allow them into your residence unless they have a search warrant which is signed by a Judge. The search warrant will describe in specific terms the location which the officers intend to search and generally will describe what items they are looking for. Upon being provided with a copy of the search warrant, allow the officers to conduct the search pursuant to the search warrant after you have verified that the location on the search warrant matches the address of your particular residence. Do not make any attempts to interfere or delay the officers in the performance of their duties regarding the search warrant. If the police knock and ask to enter your home, you should ask them to identify themselves with ID numbers prior to entering the residence. If they do not have a warrant and it is not an emergency situation, you should direct the officers to contact their local watch commander and have the watch commander contact your residence before allowing the officers to enter. If they do not have a search warrant and there are no exigent circumstances, you should not under any circumstances allow officers to search your residence without your consent. If you fail to register your objection or remain silent during the officer's questioning, you may be deemed to have engaged in an implicit and/or silent admission which will constitute a consent of your residence. Generally speaking, you should not allow anyone to search your residence and be emphatic in doing so without interfering with the officers during the performance of their duties. If a search warrant is presented to you and it clearly identifies your residence as the place to be searched and has been signed by a Judge, then you should allow the search to take place while at the same time indicating your objection for the record.
- In some emergency situations or what is deemed to be exigent circumstances (for example, when a person is screaming for help inside or when the police are chasing someone towards and in or through your residence) officers are allowed in such situations to enter and search your home without a warrant in order to effectuate arrest and/or investigate an emergency situation.
- If you are arrested, the police can search you and your area close by or any area within close proximity of where you are arrested. Under the law, this is deemed to be a search incident to arrest. If you are in a building, "close by" usually means just the room you are in. However, depending on the circumstances and nature of the case, officers will be allowed to search areas adjacent to the room you are in if it is reasonably related to the exigent circumstances and/or emergency situation.
If you are arrested or taken to a police station:
- You have a right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don't give any explanations, excuses or stories. You can make your defense later in Court after consultation with an attorney based on what you and your attorney decide is best. However, in the meantime do not try to be your own lawyer. Many people make the mistake of trying to talk themselves out of a problem and end up creating a bigger problem based on the admissions and statements they make regarding the incident. Remember, if you were a doctor and needed surgery you would be the last person to perform that surgery. It is the same situation in a legal matter. A person who represents himself has a fool for an attorney.
- Ask to see a lawyer immediately. If you cannot afford a lawyer, you have a right to have one appointed for you free of charge if you cannot afford to pay for one. You should always ask the police how you can contact a lawyer. I repeat, do not say anything without a lawyer present or after consultation with a lawyer.
- Within a reasonable time after your arrest or booking at the jail, you have the right to make a local phone call to a lawyer, bail bondsman and/or any relative or other person. The police may not listen to the call to the lawyer and any such communications made to your lawyer should be discrete and made in such a way that they cannot be overheard by any third parties.
- In some situations, you can be released without bail or have bail lowered. Generally, this is referred to as a sheriff's release on your own recognizance and you will be given a date to appear in Court. Please be sure to maintain any documents upon which your date to appear and Court location is identified. Upon release, you should immediately contact a lawyer regarding the possibility of bail and/or release on your own recognizance if you are unable to secure an OR release from the sheriff's and/or jailer. In the event that you remain in custody, you must be taken before the Judge on the next Court day after your arrest. Generally speaking, this will occur within 48 hours of your arrest whether you were arrested on the weekends or any other date during the week. Do not make any decisions in your case until you have spoken to an attorney.
Some Additional Considerations
Please be advised that you should never interfere with effective law enforcement, but should always understand your own rights and responsibilities and how you may invoke them in your encounters or relationships with the police. All individuals have the right to courtesy and respectful police treatment and the police should be treated in kind. If you believe your rights have been violated, do not try to handle the matter on your own without consultation by an attorney. If you find yourself in any of the situations described herein, immediately contact the Law Office of Barry T. Simons to speak with an experienced criminal defense attorney.