If you are ever arrested by law enforcement, you likely feel overwhelmed and scared. Knowing your legal rights can help ensure that you can exercise those rights during that stressful time. While police may arrest and hold a person in the state of California, the rights of law enforcement have limits. Learn what those limits are and how long you can be held by police without a charge, as well as all your other legal rights following an arrest.
Unlike other states that have 72-hour time limits, the state of California requires that every person arrested receive a charge or be let go within 48 hours of the arrest according to California Penal Code § 825. A person that is arrested for any reason must be brought before a judge within 48 hours of arrest at the very latest.
If a police officer attempts to stop you on a street and questions you for any reason without arresting you, or without any intention of arresting you do to probable cause, you have the right not to answer any of their questions and calmly walk away. If you are not comfortable doing that, you can always ask the police officer if you are free to go. Never run from a police officer, but if you are told you are not free to go you should request to know why you are being detained. If a police officer does have Reasonable Suspicion to suspect that you either committed a crime or were involved in some sort of criminal activity, they will be allowed to pat you down in order to determine if you have any dangerous weapons on you. However, they are not allowed to search you any further than this, and if you believe a search is too intrusive, you can clearly say that you do not consent to a search. It is important to note that even if they continue, you should never try to physically resist a police officer.
During these 48 hours (or less), law enforcement may question you regarding the circumstances under which you were arrested. The questions may be asked by all types of law enforcement officers from either federal or state agencies. However, you have the legal right under the Constitution of the United States not to answer any questions at all. You absolutely have the right to remain silent. Make sure to simply say that you are invoking your right to remain silent, and then if you choose, you can request to contact an attorney to represent you during questioning. You are not allowed to be punished for the refusal to answer a question. The only questions that you must answer are your name (for identification purposes) and in some cases provide your driver’s license or other identification as proof of identity.
If you make the choice to visit with law enforcement and answer questions, it is important to remember that anything you say could be somehow manipulated and used against you at a later time. Even if a law enforcement officer threatens to obtain a subpoena to force you to answer questions, you still do not have to answer any questions until that occurs. Additionally, if you lie to a police officer it is considered a criminal offense.
Again, in many cases those arrested by law enforcement will receive charges quite quickly, however again law enforcement does have 48 hours to officially provide an arrested person with a criminal charge in the state of California. After law enforcement takes you to the police station, they may attempt to question you. As previously mentioned, you have a legal right to refuse to answer any type of question. You can be released on your own recognizance or have a family member or friend pay bail, if a bail amount is set.
During this time, a pre-filing investigation will allow law enforcement to analyze the facts and circumstances of your particular case in order to make a determination whether or not a prosecutor can file charges against you for any criminal activity. A prosecutor has a wide range and a significant amount of discretion when deciding whether to file criminal charges against a person. A prosecutor will make the decision to either file charges against you, and the investigation with no charges which means that you are free to leave, or the prosecution could request that law enforcement conduct additional investigation and then return that evidence for a decision regarding prosecution.
Once a decision is made, you will be brought to an arraignment, which is a formal hearing where a judge will advise you of the charges brought against you, and explain to you your constitutional rights. You may be charged with an infraction, a misdemeanor, or a felony, depending on the facts and circumstances of your arrest. It is important to note that at the arraignment no evidence is ever presented, and witnesses are not called to testify. The court will schedule dates for court hearings and proceedings in the future that will involve this type of evidence and testimony. However, you do have the option to enter a plea of guilty, not guilty, or nolo contendere, which means no contest. Visiting with an experienced defense attorney during this time can ensure that your legal rights are protected.
If charges are filed against you, you may receive bail, which is the ability to provide a certain amount of money to the court in order to ensure that you show up later for any necessary court hearings. In other cases, you may be released on your own recognizance, which means that the court will trust that you will appear for any scheduled court dates required.
The law in the state of California is clear. You are only allowed to be held without charges for a total of 48 hours or less. Our office does not practice criminal defense, but we can help you if your civil rights have been violated and refer your matter to a trusted criminal defense lawyer. If your civil rights were violated, what happens in the criminal defense case can affect your civil rights claim so it is important not to make any decisions without the advice of an attorney. You can contact an experienced attorney at V. James DeSimone Law at 310-693-5561 to have strong legal representation if your rights have been violated.
Attorney V. James DeSimone is a 35+ year experienced civil rights & employment lawyer in Southern California. Jim is a Super Lawyer, Rated “Superb” by Avvo, and is a US News & World Report Best Law Firm in California.
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