Top 10 Questions

Find Out What You Need to Know After an Arrest

Being arrested by the police for a criminal offense can be one of the most traumatic and embarrassing situations an individual may encounter. With a valid arrest warrant, law enforcement officers are authorized to take you into custody wherever you may be located, whether in public, at your residence in front of family members, or, under certain circumstances, at your place of employment or at a friend or family member's residence.

Once under arrest, you will likely be handcuffed and delivered to the custody of local jail officials or correctional officers who will subject you to very intrusive procedures. These procedures may include questioning, fingerprinting, photographing, confiscation of your personal belongings, and strip searches.

During and after this process, you will likely have numerous questions to which there are no easy or quick answers. However, after years of experience working on both sides of the criminal justice profession, Kevin Whiteley and the Whiteley Law Firm have put together a list of answers to the most common questions posed by those who have been arrested and face criminal charges.

Q: What is the difference between state and federal charges?

Q: What does it mean if I have been charged with a felony (or misdemeanor)?

Q: If I have been charged with a felony (or misdemeanor), does that mean I will go to jail?

Q: What is the difference between a Suspended Imposition of Sentence (SIS) probation and a Suspended Execution of Sentence (SES) probation?

Q: How long will it take before my case is completed?

Q: Will I be able to get out of jail before the end of the case?

Q: Do I have to talk to the police?

Q: Will my case be dismissed if the police did not read me my Miranda rights?

Q: What if I am guilty?

Q: Can I represent myself?

Q: What is the difference between state and federal charges?

A: The United States and the individual States are part of a federal system. A federal system is one in which smaller component parts have joined together and formed a central governing body. Under the U.S. Constitution, the States, including Missouri, have abrogated a limited amount of their authority to the national, or federal, government.

Since the state and federal governments each have authority to make and enforce laws, when those laws are violated, both governments may bring criminal charges against the alleged perpetrators. This is where the difference between state and federal criminal charges primarily lies.

When a federal law is broken, federal law enforcement authorities, such as the FBI and DEA, may investigate the crimes and refer the case to a U.S. Attorney for possible prosecution. If the U.S. Attorney does pursue charges, the charges are filed in federal court. Similarly, when a state law is broken, state officials investigate the offense and refer the case to state, or local, prosecutors for the filing of criminal charges in their respective courts.

Q: What does it mean if I have been charged with a felony (or misdemeanor)?

A: Criminal offenses in Missouri fall into two different classes – felony and misdemeanor. Felonies are those offenses which can be punished by imposition of the death penalty or terms of imprisonment greater than one year. Misdemeanors, on the other hand, are those offenses which can be punished by terms of imprisonment one year or less.

Felonies and misdemeanors are further broken down into sub-classes in order to define the different ranges of punishment for various state criminal offenses.

An offense which cannot be punished by any term of imprisonment is called an 'infraction'. Infractions can only be punished by the assessment of a fine and are technically not 'crimes' at all and do not give rise to any form of disability.

Q: If I have been charged with a felony (or misdemeanor), does that mean I will go to jail?

A: No. Imprisonment is merely one option that a court has at its disposal when contemplating how to sentence someone who has plead guilty to or been found guilty of committing a violation of law. In a large number of cases, courts will impose a fine or, more often, place the defendant on probation instead of incarcerating an individual for a specified term.

All misdemeanors and class C and D felonies can be punished by the imposition of a fine. For the most serious misdemeanors, the maximum fine is $1,000, whereas, for felonies, the maximum fine is $5,000. Because of the severe nature of class A and B felonies, the imposition of a fine is not permitted under the law.

Q: What is the difference between a Suspended Imposition of Sentence (SIS) probation and a Suspended Execution of Sentence (SES) probation?

A: In practice, there is no difference between these two forms of probation. However, there is a vast difference in the legal effect of each. In Missouri, a criminal conviction requires two elements: 1) either a plea of guilty or a finding of guilt, coupled with 2) the imposition of a sentence, whether by incarceration or fine.

With SIS probation, there has been either a plea of guilty or finding of guilt, but there has been no subsequent pronouncement of a sentence. Thus, an individual who is placed on SIS probation has not been convicted of a crime. Although the court records are public during the commencement of the probation, upon completion, all records will become closed and unavailable. However, the downside of such probation is that upon revocation the full range of punishment is available to the sentencing court.

On the other hand, if a court has placed an individual on SES probation, there has been both a plea or finding of guilt, along with the imposition of a sentence. Therefore, because both elements are present, an individual who is placed on SES probation has been convicted of a crime. Should the court revoke SES probation, the court can only have the previous sentence performed.

Q: How long will it take before my case is completed?

A: The length of a criminal case depends on several factors, such as type and number of charges, the strength or weakness of the prosecutor's evidence, potential defenses and the strength or weakness of those defenses, the plea offer or recommendation from the prosecutor, and, most importantly, whether you are innocent of the charges altogether.

As a general matter, however, infractions, traffic offenses, and simple misdemeanors can be completed relatively quickly; more complex misdemeanors and simple felonies can be completed in as little as a few months, whereas serious or complex felonies or cases with multiple charges can take up to a year or more until final disposition.

Q: Will I be able to get out of jail before the end of the case?

A: Once a prosecutor files criminal charges against an individual and seeks an arrest warrant, a judge will determine the amount of bond (also referred to as "bail") that will secure a person's release from custody. Although the purpose of a bond is to guarantee a person's later presence in court and to protect the public, the bond is usually set at an amount commensurate with the seriousness of the charged offense, and which, many times, is larger than necessary or affordable to achieve its true purpose.

Nevertheless, the U.S. and Missouri Constitution respectively guarantee that the bond not be excessive and that each defendant must be bailable, unless the prosecutor demonstrates that a defendant poses a danger to a victim, public, or other person.

An attorney can negotiate with the prosecutor or request a bond reduction from the court in order to secure a person's release from jail. Often release can be achieved with a bond reduced to either an amount appropriate to the person's financial situation, or merely on a promise to appear.

Q: Do I have to talk to the police?

A: In a word – no. Any person, whether they are questioned in custody, in their home, or in public, is not required to answer any questions posed by law enforcement officials regarding their involvement in a criminal offense. This right against self-incrimination is secured in both the federal and state constitutions.

Unfortunately, police officers will often overlook this right in their zealous investigation of a crime. Whether by mere negligence of or intentional disregard for your constitutional rights, investigators may, at worst, intimidate and threaten you into making a statement or, at best, attempt to convince you that it is in your best interests to speak with them.

The simple truth is that you will not talk your way out of being arrested or charged, and it is rarely, if ever, in your best interest to "tell your side of the story."

Q: Will my case be dismissed if the police did not read me my Miranda rights?

A: The continued popularity and proliferation of crime drama television shows perpetuates the idea that the police must advise the suspect of his or her Miranda rights immediately upon being arrested. This television show concept, however, is a myth. The police are under no obligation to inform someone of their constitutional rights once placed in custody.

The Miranda warnings – generally, the right to remain silent and the right to an attorney – take their name from the 1966 U.S. Supreme Court decision of the same name, Miranda v. Arizona. The landmark decision requires law enforcement officials to inform individuals in custody of their rights prior to any questioning. In other words, with some limited exceptions, Miranda warnings are only required when the police interrogate someone while they are in custody.

Given these two requirements, the question whether a case will be dismissed can become a complex question. Suffice it to say, while complete dismissal of the case is not impossible, the more likely result from a Miranda violation would be suppression of the illegally obtained evidence.

Q: What if I am guilty?

A: Although your thoughts on guilt or innocence of the charges against you are important, it is only one factor that should be considered in how to dispose of the criminal case.

The Whiteley Law Firm is committed to ensuring that those charged with criminal offenses receive a result that is in their best interest. In doing so, we always ensure that the conduct of the police has been proper and the prosecution can meet their burden of proof.

Q: Can I represent myself?

A: Yes. Although the right is not unlimited, in every criminal prosecution, the accused must be permitted to act as his or her own attorney. However, the better question is whether you should represent yourself. To that question, the answer is undeniably no. For more information on why a criminal defendant should hire an experienced criminal defense attorney, please read more here.