WHAT IS AN ARREST?
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may have been involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary. You also can be detained by storekeepers if they suspect you have stolen something from their stores.
Whether you are arrested or detained, you do not have to answer any questions except to give your name and address, and to show some identification if requested.
When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may have been involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary. You also can be detained by storekeepers if they suspect you have stolen something from their stores.
Whether you are arrested or detained, you do not have to answer any questions except to give your name and address, and to show some identification if requested.
THOMAS A. MARTIN
Attorney-at-Law
Attorney-at-Law
FREQUENTLY ASKED QUESTIONS
The Law Offices of Thomas A. Martin represents clients throughout Southeast Texas, including the cities of Houston, Galveston, Memorial, River Oaks, West University,
Clear Lake, League City, Sugar Land, Pearland, Beaumont, Hempstead, Katy, Conroe, and all the communities in Brazoria, Chambers, Fort Bend,
Galveston, Grimes, Harris, Jefferson, Liberty, Matagorda, Montgomery, Polk, San Jacinto, Trinity, Walker, Waller and Wharton Counties.
Clear Lake, League City, Sugar Land, Pearland, Beaumont, Hempstead, Katy, Conroe, and all the communities in Brazoria, Chambers, Fort Bend,
Galveston, Grimes, Harris, Jefferson, Liberty, Matagorda, Montgomery, Polk, San Jacinto, Trinity, Walker, Waller and Wharton Counties.
WHAT RIGHTS DO I HAVE?
Whether you are an adult citizen or a non-citizen, you have certain rights if you are arrested.
Before the law enforcement officer questions you, he or she must tell you that:
-You have the right to remain silent.
-Anything you say may be used against you.
-You have the right to have a lawyer present while you are questioned.
-If you cannot afford a lawyer, one will be appointed for you
.
These are your "Miranda" rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.
Whether you are an adult citizen or a non-citizen, you have certain rights if you are arrested.
Before the law enforcement officer questions you, he or she must tell you that:
-You have the right to remain silent.
-Anything you say may be used against you.
-You have the right to have a lawyer present while you are questioned.
-If you cannot afford a lawyer, one will be appointed for you
.
These are your "Miranda" rights, guaranteed by the U.S. Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.
ONCE I AM TOLD MY RIGHTS, CAN I BE
QUESTIONED?
You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different.
You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take a test, your driver's license may be suspended and the refusal will be used against you in court.
Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have the right to make and complete telephone calls that are free within the local dialing area.
You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different.
You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol, you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take a test, your driver's license may be suspended and the refusal will be used against you in court.
Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have the right to make and complete telephone calls that are free within the local dialing area.
WHEN SHOULD I SEE A LAWYER?
If you are arrested in a crime, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to the law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family and friends of the bail process.
HOW CAN I FIND A LAWYER?
A friend, a co-worker or your employer, as well as doctors, ministers, or teachers may be able to recommend a lawyer.
Ask for a lawyer who represents clients accused of crimes. If you decide to hire a lawyer, make sure that you understand what you will be paying for, how much it will cost, and when you are expected to pay your bill. For more information, see the Texas State Bar pamphlet, "How Can I Find and Hire the Right Lawyer?"
WHAT IF I CAN'T AFFORD A LAWYER??
The court will appoint one for you or the public defender's office will represent you in certain Texas counties.
The U.S. constitution guarantees anyone charged with a crime the right to legal counsel experienced in criminal law.
If you are arrested in a crime, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to the law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family and friends of the bail process.
HOW CAN I FIND A LAWYER?
A friend, a co-worker or your employer, as well as doctors, ministers, or teachers may be able to recommend a lawyer.
Ask for a lawyer who represents clients accused of crimes. If you decide to hire a lawyer, make sure that you understand what you will be paying for, how much it will cost, and when you are expected to pay your bill. For more information, see the Texas State Bar pamphlet, "How Can I Find and Hire the Right Lawyer?"
WHAT IF I CAN'T AFFORD A LAWYER??
The court will appoint one for you or the public defender's office will represent you in certain Texas counties.
The U.S. constitution guarantees anyone charged with a crime the right to legal counsel experienced in criminal law.
WHO CAN ARREST ME?
All law enforcement officers - such as police officers, county sheriffs, investigators in a district attorney's or an attorney general's office, and highway patrol officers - can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.
They can arrest you - even if they do not have an arrest warrant - if they have probable cause or good reason to believe you have committed a felony, such as an armed robbery. (A felony is a crime of a more serious nature than a misdemeanor, and is usually punishable by imprisonment for more than one year.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
If you commit an infraction, instead of taking you into custody, they may ask you to sign a citation or notice. This is a minor offense, such as a traffic moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.
CAN SOMEONE OTHER THAN A POLICE OFFICE ARREST ME?
Any person may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is a felony or against the public peace.
All law enforcement officers - such as police officers, county sheriffs, investigators in a district attorney's or an attorney general's office, and highway patrol officers - can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.
They can arrest you - even if they do not have an arrest warrant - if they have probable cause or good reason to believe you have committed a felony, such as an armed robbery. (A felony is a crime of a more serious nature than a misdemeanor, and is usually punishable by imprisonment for more than one year.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.
If you commit an infraction, instead of taking you into custody, they may ask you to sign a citation or notice. This is a minor offense, such as a traffic moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.
CAN SOMEONE OTHER THAN A POLICE OFFICE ARREST ME?
Any person may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is a felony or against the public peace.
WHEN IS AN ARREST WARRANT ISSUED?
Usually a warrant is required before you can be taken into custody from your home. But, you can be arrested at home without a warrant if fast action is needed to prevent you escaping, destroying evidence, endangering someone's life, or seriously damaging property.
The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed the crime. If your name is unknown, "John Doe" be used on the warrant - along with your description.
Once an arrest warrant is issued, any law enforcement officer in the state can arrest you - even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door - or there is another good reason - the officer can break through a door or a window.
If the police have an arrest warrant, you should be allowed to see it. If they don't have it with them, you should be allowed to see it as soon as practically possible.
The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.
Resisting an arrest or detention is a crime. If you resist an arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
Usually a warrant is required before you can be taken into custody from your home. But, you can be arrested at home without a warrant if fast action is needed to prevent you escaping, destroying evidence, endangering someone's life, or seriously damaging property.
The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed the crime. If your name is unknown, "John Doe" be used on the warrant - along with your description.
Once an arrest warrant is issued, any law enforcement officer in the state can arrest you - even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.
Before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door - or there is another good reason - the officer can break through a door or a window.
If the police have an arrest warrant, you should be allowed to see it. If they don't have it with them, you should be allowed to see it as soon as practically possible.
The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.
Resisting an arrest or detention is a crime. If you resist an arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.
WHEN CAN I BE RELEASED?
If, during the questioning and before a charge is filed, the police are convinced that you have not committed the crime, they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest.
WHAT IS BAIL AND HOW IS IT SET?
The amount of bail - money or other security deposited with the court to insure that you will appear - is set by a schedule in each county. You may be notified that you can forfeit or give up bail instead of appearing in court if you receive a traffic citation. However, if you have any doubt, go to court so a warrant is not issued for your arrest for failing to appear. Bail forfeiture does not mean that charges will be dropped and usually works as a conviction for a traffic offense.
If you cannot post or put up the bail, you will be kept in custody. Depending on where you are arrested, you may have the opportunity to request a bail reduction through a bail commissioner.
When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense you are charged with, any prior criminal record, any prior failures to appear - even for traffic tickets, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. The law presumes you are guilty of the charges for the purposes of setting the bail for release.
Instead of paying bail, you might be released on your own personal recognizance. This means that you do not have to pay bail because the judge believes that you will show up for your court appearances without bail.
If, during the questioning and before a charge is filed, the police are convinced that you have not committed the crime, they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest.
WHAT IS BAIL AND HOW IS IT SET?
The amount of bail - money or other security deposited with the court to insure that you will appear - is set by a schedule in each county. You may be notified that you can forfeit or give up bail instead of appearing in court if you receive a traffic citation. However, if you have any doubt, go to court so a warrant is not issued for your arrest for failing to appear. Bail forfeiture does not mean that charges will be dropped and usually works as a conviction for a traffic offense.
If you cannot post or put up the bail, you will be kept in custody. Depending on where you are arrested, you may have the opportunity to request a bail reduction through a bail commissioner.
When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense you are charged with, any prior criminal record, any prior failures to appear - even for traffic tickets, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. The law presumes you are guilty of the charges for the purposes of setting the bail for release.
Instead of paying bail, you might be released on your own personal recognizance. This means that you do not have to pay bail because the judge believes that you will show up for your court appearances without bail.
WHO MAINTAINS ARREST RECORDS AND WHAT
DO THEY INCLUDE?
Local police departments, county district attorneys and the Texas Department of Public Safety keep arrest records. According to law they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies which have a right, by state law, to investigate your criminal background.
The arrest record includes when and why you were arrested, whether the charges against you were dismissed or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial count as convictions.
Local police departments, county district attorneys and the Texas Department of Public Safety keep arrest records. According to law they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies which have a right, by state law, to investigate your criminal background.
The arrest record includes when and why you were arrested, whether the charges against you were dismissed or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial count as convictions.
WHAT HAPPENS AT AN ARRAIGNMENT?
You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you can not afford one, and bail can be raised or lowered. You also can ask to be released on P.R., even if bail was previously set.
If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.
Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.
If misdemeanor charges are not dropped, a trial will be held later in county court of law. In some counties, these courts are called "County Criminal Courts of Law." If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.
WHAT HAPPENS AT A PROBABLE CAUSE HEARING
During the probable cause hearing, usually within days of the arraignment, the district attorney's office must present evidence in showing a reasonable suspicion that a felony was committed, and that you did it, to convince the judge that you should be brought to trial. A probable cause hearing or evidentiary trial does not mean that you are found guilty of the charged offense.
You have the right to be arraigned without unnecessary delay - usually within two court days - after being arrested. You will appear before a judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you can not afford one, and bail can be raised or lowered. You also can ask to be released on P.R., even if bail was previously set.
If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.
Before pleading guilty to some first time offenses, such as drug possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.
If misdemeanor charges are not dropped, a trial will be held later in county court of law. In some counties, these courts are called "County Criminal Courts of Law." If you are charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.
WHAT HAPPENS AT A PROBABLE CAUSE HEARING
During the probable cause hearing, usually within days of the arraignment, the district attorney's office must present evidence in showing a reasonable suspicion that a felony was committed, and that you did it, to convince the judge that you should be brought to trial. A probable cause hearing or evidentiary trial does not mean that you are found guilty of the charged offense.
WHEN CAN AN OFFICER CONDUCT A SEARCH?
An officer always may make a search with either your consent, a search warrant, or with probable cause. You have a right, however, to see the warrant before the search begins.
WHEN CAN AN OFFICER SEARCH YOU, YOUR CAR OR YOUR HOME WITHOUT A WARRANT?
Body Searches: If you are arrested, an officer can search you - without a warrant - for weapons, evidence, or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs, or violence unless police reasonably suspect you are concealing a weapon or illegal goods. If you are booked and jailed, you may undergo a full body search, including body cavities.
Home Searches: In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody from your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms - and even other parts of the same room - are off limits, unless the officer believes that other suspects are in other rooms, or other separate parts of the same room. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, which are in plain sight.
Car Searches: Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe that it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason - such as a broken tail light - they can take any illegal goods that are in plain view and arrest you.
If you, your home, or your car are searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.
An officer always may make a search with either your consent, a search warrant, or with probable cause. You have a right, however, to see the warrant before the search begins.
WHEN CAN AN OFFICER SEARCH YOU, YOUR CAR OR YOUR HOME WITHOUT A WARRANT?
Body Searches: If you are arrested, an officer can search you - without a warrant - for weapons, evidence, or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs, or violence unless police reasonably suspect you are concealing a weapon or illegal goods. If you are booked and jailed, you may undergo a full body search, including body cavities.
Home Searches: In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody from your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms - and even other parts of the same room - are off limits, unless the officer believes that other suspects are in other rooms, or other separate parts of the same room. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, which are in plain sight.
Car Searches: Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe that it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason - such as a broken tail light - they can take any illegal goods that are in plain view and arrest you.
If you, your home, or your car are searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.
EXPUNCTION OF CRIMINAL RECORDS.
Expunction is defined as the removal of criminal arrest and conviction records from the State law enforcement computers. Generally, this is a very good thing. In Texas, a person who is acquitted at trial is generally entitled to have a criminal arrest record for that offense expunged upon motion following trial. A common misconception in Texas is that a person who pleads guilty to a charge, or who receives a form of community supervision known as deferred adjudication, may have their record expunged. This last statement is NOT true - if you plead guilty or receive deferred adjudication, you may not have your record expunged.
Expunction is defined as the removal of criminal arrest and conviction records from the State law enforcement computers. Generally, this is a very good thing. In Texas, a person who is acquitted at trial is generally entitled to have a criminal arrest record for that offense expunged upon motion following trial. A common misconception in Texas is that a person who pleads guilty to a charge, or who receives a form of community supervision known as deferred adjudication, may have their record expunged. This last statement is NOT true - if you plead guilty or receive deferred adjudication, you may not have your record expunged.
The Law Offices of Thomas A. Martin represents individuals
facing serious felony charges in both state and federal trial
and appellate courts. We represent people facing felony
charges from drugs to murder, and have developed an
emphasis on sex crimes (both adult and child offenses).
In our commercial litigation practice, we represent small business owners facing "bet the business" litigation prospects if the opposing side wins.
With our family law practice, we cherish the opportunity to represent parents, especially fathers, who need a divorce and want to keep or get custody of their kids.
In our commercial litigation practice, we represent small business owners facing "bet the business" litigation prospects if the opposing side wins.
With our family law practice, we cherish the opportunity to represent parents, especially fathers, who need a divorce and want to keep or get custody of their kids.