It’s 2:30 a.m. and the phone rings. It’s the wife of a client telling you her husband has just been arrested, and they need immediate help.
Whether the situation involves a charge of DUI, disorderly conduct, possession of drugs, misdemeanor or felony, this scenario plays out time and again in the life of an attorney.
When dealing with the panicked telephone call from the client or family, time is of the essence. Such late night alarms can be daunting to say the least. Dealing with someone looking to you for answers as their loved one is being handcuffed and taken away can be very stressful. Even the most experienced attorneys can find themselves caught off guard if not properly prepared. The valuable opportunity afforded by the panicked, late night request for assistance must not be squandered. These are the critical moments in which the educated attorney can quickly gather all of the information essential to helping their client deal with the urgency of their arrest, detainer, and subsequent prosecution.
Initial Checklist and Information
The following list will prove extremely helpful in quickly identifying the information you will need to address the concerns of your client:
- Name of person facing investigation or charges
- Their date of birth
- Date of the offense
- Investigating agency/jurisdiction
- Police report number
- Is the matter being investigated as a misdemeanor or felony?
- If the client is under arrest, determine what jail he/she is in, or heading to. If already in jail, obtain their booking number and bond. (Inquiring about the bond is a quick and efficient means of determining if the client has sufficient resources to retain counsel.)
- Next court date (If just arrested, the initial appearance before a judge must be within 24 hours.)
- Information about witnesses or evidence that might need to be immediately preserved.
Once the proper information is compiled, the attorney should quickly reach out to the arresting officer or client; thus positioning themselves to negotiate release conditions, or even derail the basis for the arrest and detention. The more quickly the attorney intercedes, the more likely they can prevent their client from doing damage to their own case. In higher profile matters, the attorney should make every effort to provide counsel to the client and their family before they are sought by the media.
Basic Criminal Process Upon Being Arrested
Especially when handling a case where your client was just arrested, you need to understand basic criminal process as matters move very quickly.
In Arizona there are two basic types of criminal offenses: misdemeanors and felonies. In the most general terms, a misdemeanor is any criminal offense in which no prison is possible, but jail is possible. A felony is a criminal offense in which prison is possible.
Jail is controlled by the county and may allow for work release or work furlough. A jail sentence may not exceed one year for a felony, or six months for a misdemeanor. Probation is possible and may or may not be supervised. If granted probation, the court has the discretion to allow work release (parameters set by the court), or work furlough (as directed by probation).
No work release or furlough is possible in prison. In most cases, the client is not eligible for release until he has served at least 85 percent of their time. Under Arizona’s sentencing code, a prison term may be as short as four months, and as long as a life sentence or incarceration pending the execution of a death sentence.
Initial Appearance Court
When someone is arrested, the person must be brought before the court within 24 hours. This court appearance is their Initial Appearance (IA). The basic function of IA court is to advise the person of the reasons for the arrest, to set the conditions of release, and to set the next court date. Some courts hold the IA a couple times a day. Other courts, such as the Maricopa County Superior Court hold their IA court every 3 hours, 24/7.
The court can release the defendant solely upon their promise to appear at any future court appearance. This is a true release based on one’s “own recognizance” (also known as O.R. release). The court can require release to a third party as well. In most cases, third party release is done through pretrial services. The court can order any release to be conditional, including, but not limited to drug testing, electronic monitoring, forfeiture of a passport or other travel, work and computer restrictions. The court could also determine that neither O.R. or third party release will be sufficient to secure the defendant’s presence at future court dates. In that event, the court could order the “imposition of a bond.” The bond may be limited to cash or property, depending on the court’s requirements. Some felonies are non-bondable. If detained for a probation violation, the person is normally non-bondable.
If the defendant were to fail to appear for a court date, the court may forfeit any or all of the money or other collateral posted. Bond may be posted personally or through a bail bondsman. The bondsman will normally charge a fee of 10 percent of the bond plus collateral equal to the total bond. As a practice, the defendant should not use a vehicle as collateral. Rather than securing title, the bondsmen may secure the vehicle and charge impound fees.
In some cases (normally misdemeanor cases involving domestic violence, or first offense, simple drug cases), the client may be eligible for “diversion.” If so, the prosecutor will allow the defendant to enter a counseling program and no charges will be filed. In this case, no plea agreement is entered. In the case of “deferred prosecution,” the defendant must enter a guilty plea in most cases, and then complete the required counseling. If counseling is successfully completed, the charges will normally be dismissed. However, if not, the terms of punishment set forth in the plea agreement will be imposed and a conviction formally entered. The important part of either diversion or deferred prosecution is that there is no formal conviction and therefore, no criminal record. There is still an arrest however, and in most cases, a prosecution history available on public databases.
Especially with the client’s fear raised in their initial call, you can reduce their stress level and provide knowledgeable advice and counsel. The information provided will hopefully permit you to provide the guidance they are seeking.
Howard Snader is a Board Certified Criminal Law Specialist. If you or anyone you know has been arrested, please call him at 602.957.3300, email him at [email protected] or visit his website at https://www.snaderlawgroup.com