It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
To arrest someone is to restrain or take a person into custody in
order to charge him or her with a crime. If you are arrested, you have
rights to protect yourself whether you are guilty or innocent. Remember,
however, the police also have rights and responsibilities that you
must recognize.
In Oregon, you may be arrested for either a felony or a misdemeanor.
A felony is a crime punishable by imprisonment in the state
penitentiary for more than one year. A misdemeanor is a crime
that may be punished by sentencing you to one year or less in the municipal
or county jail. Besides a possible jail sentence, you may face fines
and various court costs, license suspensions, conditions of probation
and other consequences.
In addition to these types of crimes, you may be arrested if an arrest
warrant has been issued for such things as probation and parole violation
or failure to appear in court on a criminal charge.
You cannot be arrested for a violation, like a speeding ticket.
However, an officer can detain you long enough to identify who you
are and to give you a citation.
If an officer orders you to go with him or her, or when you submit
or surrender to custody, you have been arrested. If an officer merely
asks you to go with him or her to the police station, you have not
been arrested.
An arrest does not occur when an officer conducts a "stop and
frisk." This is simply a temporary restraint to ask you about
a crime while patting your outer clothing in a search for weapons.
If you are not sure whether or not you are being arrested, ask the
police officer if he or she is placing you under arrest. Unless you
are under arrest, you do not have to go with the officer.
While a police officer may use reasonable physical force to make an
arrest, he or she cannot use more force than is necessary to restrain
a person and prevent escape. There are legal remedies if too much force
has been used, and you should discuss these with a lawyer.
Even if you are innocent, it is a crime to resist a police officer
while he or she is placing you under arrest. Do not resist arrest.
Do not become disorderly, use abusive language or provoke others to
use bad language. Do not interfere if officers are attempting to arrest
other persons. If it turns out that you have been arrested illegally,
the law may provide a solution.
At the time of arrest, the officer must tell you why you are being
arrested and how the arrest is authorized. An officer may arrest you
without a warrant if he or she has "probable cause" to believe
you committed a crime. Otherwise a warrant is needed.
A private person may make a "citizen’s arrest" for
any crime committed in that person’s presence if there is probable
cause to believe you committed the crime. A citizen making such an
arrest must immediately take you to a judge or turn you over to a police
officer.
When you have been legally arrested, an officer may search you and
your clothing without a search warrant. An officer is also permitted
to a limited search of the area that you occupied at the time of your
arrest. This is a search for evidence relating to the crime for which
you have been arrested, or for weapons. In all other cases, a police
officer must have a search warrant and your consent (agreement) to
search, unless there are exceptional circumstances. Whether or not
you have been arrested, you are not required to give your consent to
be searched. However, you should not resist a search with force. If
a search is illegal, the courts can determine this later.
If you are arrested, you have the right to request the help of a lawyer.
Your number of phone calls may be limited, so you might want to telephone
a relative or another person who can help you locate a lawyer. You
will be taken to a police station where you are booked. You may be
fingerprinted and photographed. You may ask to have these removed from
your record if the case against you is dismissed. You do not have to
submit to an interview about the charge(s) against you.
An inventory of your personal belongings will be taken during your
booking. You should be given an itemized receipt for the personal items
that will be held for you. These items, often called prisoners’ property,
are usually returned to you whenever you are released from custody.
However, some items may be kept by the police for evidence purposes
while a case is pending.
Besides giving your name and address, you do not have to answer any
further questions after you have been arrested. You also do not have
to sign any papers. Remember, anything you say may be used against
you later. It is improper for anyone to promise you a lighter sentence,
or anything else, in exchange for a confession. No official may use
any force or threats against you. Violations should be reported to
the judge, district attorney, and your own lawyer.
You cannot be forced to take a lie detector test. You should talk to
your lawyer before asking or agreeing to take such a test. Lie detectors
are not always accurate. Also, lie detector test results are not allowed
in Oregon courts, except in rare situations.
You may be required to stand in a line-up, but you have the right to
have your lawyer there. If you are asked to perform other tests, consult
with your lawyer first. You have the right to get out of jail on bail
or a conditional release agreement unless you are charged with murder.
There are three kinds of release agreements: security release, personal
recognizance, and conditional release.
A security release (often called “bail”) is secured by
a deposit of money or other property. Be sure to obtain a receipt for
any money or property deposited. The dollar amount of the security
release is set by the court. If the defendant fails to appear for any
court date, the money is lost through a procedure called bail forfeiture.
When the case is resolved, the money or property deposited can be returned.
Some courts will use some or all of the money to pay financial obligations
on other cases involving the same defendant, such as unpaid traffic
tickets or court costs.
Personal recognizance means that you promise to appear in court at
all required times; being released on “recog” means you
are not required to post bail. A conditional release is very similar.
It includes conditions that regulate your activities while you are
out of jail, such as where you can live and whom you may see. Often,
this requires the agreement of a third person to assure your appearance
in court and to supervise your behavior on release. A release assistance
officer or other person appointed by the court may interview you to
collect information for the judge to review at your first appearance.
A judge may decide to release you from jail before trial, and he or
she has the authority to change the amount of the bail and to set conditions
on your release.
If you are released for any reason, be sure to carefully read any paperwork
you are given. Release agreements usually prohibit you from contacting
the alleged victim or leaving the state.
Remember that failure to appear in court when required after you have
been released is a new crime that carries additional jail penalties.
The judge can order forfeiture of any bail posted and can issue a bench
warrant for your arrest. In some cases, failure to appear can also
cause a license suspension. Normally, you must appear before a judge
for a court appearance within the first 36 hours after your arrest.
If the police officer or jail authorities give you a ticket or any
paperwork, read it carefully. It will probably indicate your court
date and the conditions of your release. If you are confused or lose
your paperwork, the clerks at the courthouse can usually tell you your
court date.
If you decided to seek legal assistance after your arrest, you should
have your lawyer with you when you first appear before a judge. If
you do not have a lawyer, the judge will tell you of your right to
have one. If you ask, the judge will postpone proceedings to allow
you reasonable time to get a lawyer.
If you cannot afford to hire a lawyer, ask the judge to appoint one.
If someone cannot afford a lawyer, the court is required to appoint
a lawyer in all cases where a person is facing the possibility of a
jail sentence. This includes any crime, violation of probation, violation
of a restraining or stalking order, or extradition to another state.
When you appear before a judge, he or she must tell you the charges
against you, give you a written copy of them, and ask for your plea.
The judge will usually ask you to plead not guilty, guilty, or no
contest to the charge at the first hearing. If you plead not guilty,
the court will set a later date for the trial. If you enter a plea
of guilty or no contest, the judge will proceed to sentence you.
In most felony cases, a grand jury decides whether or not there is
enough evidence to accuse you of a felony. If the grand jury decides
that there is not enough evidence, the case may be dismissed or reissued
as a misdemeanor. If there is enough evidence of any felony, the grand
jury gives the prosecution the authority to issue an indictment.
You may ask to appear before the grand jury when it is considering your
case, but you should not do this without your lawyer’s advice. The grand
jury does not have to allow you to appear before it.
If the grand jury indicts you, you will be given a copy of the indictment
at an arraignment. In most cases, you will be advised to enter a not
guilty plea and demand a jury trial. That gives you and your lawyer
time to investigate the case, negotiate the best possible settlement,
or prepare for trial.
Legal Editor: The Hon. Steven A Todd, March
2008