Being arrested is a traumatic and difficult experience. After an arrest, you may be unsure of what is going to happen - will you be charged? What kinds of charges will you face? Who makes these decisions? Before you panic about your arrest, learn more about the process and what charges you may be facing.
How Charges Get Filed
Usually, charges against a person are filed shortly after an arrest. Though the police are the ones who may first put you under arrest for a specific crime or violation, the police do not have the power to decide how you will be charged. An arresting officer will file a report listing the circumstances of the arrest and some suggested charges, but the arresting officer does not have the final say on whether or not you will face charges or what those charges will be.
Instead, the arrest report is sent to the district attorney's office. The prosecutor assigned to your case will review the arrest report, decide if you should be charged with a crime, and if so, what type of charges you will face. When a person is in custody and has been put under arrest, the prosecutor will usually have 48 hours (not counting weekends or holidays) to decide what type of charges are appropriate.
In some circumstances, especially with serious crimes, there may not be an arrest before charges are filed. Sometimes, a prosecutor will present possible charges to a grand jury, who will then decide if there is enough information to make an arrest. In these situations, an arrest may not be made for several months after a crime was committed.
Types of Charges
If the district attorney's office decides that you should be charged with a crime, the prosecutor has three options: Charge as an infraction, a misdemeanor, or a felony. The difference between these types of charges is based on the type of punishment that each charge carries.
An infraction is the least serious charge. Infractions are only punishable with fines, and do not have the possibility of any jail time or probation. Infractions are generally given out for things like traffic offenses or minor drinking charges.
A misdemeanor is punishable by fines, probation, and a maximum jail sentence of up to one year. People charged with misdemeanors do not go to prison, and will instead serve their time in the county jail. In contrast, a felony charge is also punishable with fines and probation, but the maximum sentence is more than one year. In most cases, people who are incarcerated for serious or violent felonies serve their time in state prisons.
How Prosecutors Decide on Charges
The district attorney's office often has broad discretion on how a person will be charged. When considering the arrest report, the prosecutor has the option to decline to file charges, file the charges the officer suggests, or add or subtract charges to the arrest.
In some instances, a crime may qualify as either a misdemeanor or a felony. These types of charges are usually referred to as "wobblers," because the prosecutor has the choice to charge a person with either a felony or a misdemeanor, depending on the circumstances.
For example, after a fight a person is usually charged with assault and battery. This offense can be charged in a variety of ways, depending on the circumstances. The prosecutor will look at what happened during the fight, why the fight occurred, the criminal histories of the participants, and whether or not a weapon was used. If a person in the fight was simply defending themselves, the prosecutor may not file charges at all. If the fight was relatively minor, the person could be charged with a misdemeanor. If one of the people involved in the fight used a knife or a baseball bat, it is more likely that the person could be charged with felony assault or even attempted murder.
Early Intervention Can Reduce Charges
If you are arrested, or believe that you will be arrested soon, it is incredibly important to have your defense attorney speak with the prosecutor as soon as possible. Sometimes, your attorney can explain your side of the story to the prosecutor, and influence him or her to file lesser charges.
In addition, because prosecutors have a limited amount of time after an arrest to file charges, they will often overcharge a defendant. A skilled criminal defense attorney can negotiate these charges down to less serious offenses, which may reduce the penalties a person is facing after an arrest.
At the Law Offices of Virginia L. Landry, our attorneys will work with prosecutors, and will try to get your charges reduced if possible. While no one can guarantee that your charges will be reduced, having an experienced criminal defense attorney on your side may mean the difference between facing serious felony charges and dealing with a misdemeanor offense.
If you have questions about your case, or want to know if you will be facing a felony or misdemeanor charge, the Law Offices of Virginia L. Landry is here to help. Visit us online, or set up a free initial consultation with one of our attorneys by calling 866.902.6880 today.