If you find yourself being arrested, there are a handful of decisions in those first few minutes and hours that matter more than almost anything else in your case.
Miranda Rights: They Only Protect You If You Use Them
Right around the moment of arrest, you’re going to hear an officer read you your Miranda rights. Everybody’s heard them on TV: you have the right to remain silent, anything you say can and will be used against you, you have the right to an attorney, and if you can’t afford one, one will be appointed for you. All that really is, is the officer informing you of your constitutional rights.
Here’s the piece people need to remember: those rights can be waived. So when they tell you that you have the right to remain silent, you actually have to use it. Don’t try to talk your way out of the arrest, because by the time you’re being arrested, that decision has already been made. Anything you say at that point is just going to be used against you. And crucially, if you don’t stay quiet after they’ve read you those rights, you have waived your right to remain silent.
That instinct to explain, to fix it, to talk your way out is completely natural, and it’s exactly the thing that hurts you.
Staying Silent Doesn’t Mean Refusing Everything
Staying silent doesn’t mean you refuse to give them anything at all. There’s information they can legitimately ask for, such as your name or your ID, and you should comply with that. They’re also going to search you. It’s called a “search incident to arrest,” and they have the right to do it, so don’t resist. Don’t make it physical. That only leads to worse outcomes for you.
Then you get to the most important one: the lawyer. This is where people make the biggest mistake. If an officer asks whether you want to talk about what you’re accused of, here’s what you say: “Thank you, officer, but I’d like to speak to an attorney before I answer any questions.” And then you actually stop talking. They’re supposed to respect that, but sometimes they’ll keep asking anyway. If they do, don’t answer, because the moment you start answering, they can say you changed your mind and wanted to talk. You’ve reversed your own decision at that point.
Your Phone, and How You Carry Yourself
This is especially relevant these days. Our lives are on our phones. Do not give law enforcement your pass code. This can’t be stressed enough, because handing over that pass code may allow a search of your entire phone.
Just like with any interaction with law enforcement, how you conduct yourself matters. Stay calm, stay respectful, don’t escalate. Escalating can lead to harm, to you or to the officer, and it can tack on extra charges you didn’t come in with.
First Appearance: What It Is and Isn’t
So say all of that is done. You’ve been arrested, you’ve stayed quiet, you’ve asked for a lawyer. What happens next is your first appearance. The timing depends on how you were arrested: without a warrant, you’re in front of a judge within 48 hours; with a warrant, it’s 72. That’s in front of a Magistrate Court judge, and it’s your first opportunity to get a bond. There are some crimes a magistrate cannot grant bond on, and even when they can, depending on the charge, they may decide not to.
First appearance is not the place to argue your actual case. This is not where you tell your side of the story or try to prove your innocence. It’s about the charges and bond, that’s it. The time to argue the facts is later.
If bond is denied, you still have options. You can pursue what’s called a consent bond order, where the State and the defense agree on a bond with certain conditions, and present that to a judge. Or, if the State won’t agree, you can apply for a hearing in front of a superior court judge.
Watch What You Say on Jail Phones
Once you’re actually incarcerated, be careful what you saw on the phone. Every call you make on a jail phone, every text on a jail tablet, is recorded. All of it. If you wouldn’t say it directly to the prosecutor, don’t say it on a jail phone. Don’t discuss the details of your case while incarcerated, because every statement can come back against you.
The Bottom Line
This is just the basics, every case is different, and every set of facts is different. But I’ll say it as plainly as I can: if you get arrested, obtaining good legal representation is the most important thing you can do.
And if you or someone you love is going through this, that’s exactly what we’re here for.
