What Do I Do If I Am Arrested

Q: Good afternoon, Edward. I guess the first thing we need to address is the arresting stage. For LawyerShop users what insight can you provide into what usually happens during an arrest?

A: The first involvement of a person in the criminal justice system is often when they first hear that police want to speak with them. It is to everyone’s advantage if they face a situation like that to speak to a criminal lawyer first before returning that call (assuming the police left you a message to call them). I can’t stress that enough.

The advice that you are going to get prior to returning that call may make a huge difference down the line. We have been able to intervene such that a person never ends up getting charged.

But let’s assume that an arrest has actually taken place. There is a common misconception that you are entitled to one phone call or two phone calls. The actual legal entitlement is to reasonable use of the phone. Some police officers are very good about that and will let you make many phone calls. However, we hear frequent stories of people who say, “It didn’t matter how many times I asked, I never got to make any phone calls.”

Even though you may want to make the call to your family first, the most important call to make is the call to a lawyer. If you happen to already know somebody, the police are obligated to help you find the number of that lawyer. They will go on-line or check the lawyer’s directory or they will call Directory Assistance and find your lawyer for you.

Any other calls can be made by your lawyer. If you need to let your spouse know or if you need to let your parents know or if you need to let work know, start with the lawyer because you should not assume that you will have the opportunity to get another call.

If it is three o’clock in the morning and you call your lawyer’s office and surprise, surprise they are not at the office (which incidentally shouldn’t happen if you are calling an Adler Bytensky Prutschi lawyer as our direct lines all forward to cellular phones equipped with voice mail; we are available to respond 24/7), you should be given opportunity to speak with other lawyers or make other attempts to get in touch with that lawyer.

There are no guarantees in life though, and we see many cases where police officers are impatient and improperly curtail a person’s rights to counsel. That can become relevant later on in your trial.

Q: You talk about the importance of speaking to a lawyer first before heading into the police station to answer questions. Maybe you could share what options are available to people who are asked to come down to the police station.

A:Well, first of all there is a very common misconception that if a police officer asks you to come down to the station to talk with him; you are obligated to do so. That is completely wrong. You have no obligation to do so.

In my experience, in the vast majority of cases when an officer says, “We just want to talk to you,” that is police code for saying “someone has made a complaint about you, we are almost certainly going to charge you with a criminal offense, but we want to get as much information that will help us prosecute that criminal offense from you as possible before you talk to your lawyer.”

When clients contact us right off the bat, we say, “Don’t even make the call back. Let us make the call.” We will call the police officer back and we will say, “What is the story with ‘Mr. Joe’? Do you plan on arresting him?”

The officers will tend to be much more candid with a lawyer than they will be with you. They will tell us, “No we are not planning on arresting him, but we do need some information,” or “Yes, we are going to arrest him.”

If there is an arrest warrant, we are going to make sure you go into the police at a time that is most opportune and convenient for you. For example, a common police tactic is to get you to come in on a Friday afternoon at four o’clock to have this little discussion.

Well, if they are going to arrest you and hold you for a bail hearing, you are going to be lucky if you get your bail hearing on Monday, three days later, after spending time in jail for a relatively minor offense for which you never would have gotten a jail sentence otherwise. Even turning yourself in on Monday is generally a bad idea because the Bail Courts are backed up from everything that happened on the weekend.

We can often negotiate in good faith with an officer and say, “Yes he will come in, but he is going to come in on Tuesday. We are going to take some time over the weekend to put our sureties in place, we are going to get people who are ready to bail him out, and he will turn himself in at six in the morning on Tuesday.” We maximize the opportunity to get your case heard right away on the same day.

Q: What information do you need to get across to both friends and family of those who have been charged?

A: First of all, we try to take a lot of information from those people. We will try to find out what division arrested a person, what the charges are, what this is all about, whether they have been in trouble before, what their employment situation is. We are trying to feel out the likelihood this person is going to be released on bail or released without even requiring a bail hearing or whether we are going to have a real fight to get that person out of custody.

In terms of the information we are sending back, the very first thing everybody wants to know is, are they coming back home tonight? Are they going to be out of custody? What do I have to do? We try to glean as much information from the family as we can so that we can give them an accurate answer to that.

We also start to prepare them for the possibility that there may be a bail hearing and that they may need to come to court and provide information and a promise to the Court to care for this individual while they are out of custody. We will vet things like that with them too and say, “If you are going to be the surety, what is your relationship? Are you Mom, Dad, girlfriend, boyfriend, employer or whatever? Do you have a job? Are you a Canadian citizen? Have you ever been charged with a criminal offense?”

We will also explain to them what their responsibilities will be as a surety so that when they take the stand, they look like somebody who has been well informed, and they know what their responsibilities are and what they are going to do if there is an allegation of a breach of the bail. They come across as a very impressive witness to a Judge or a Justice of the Peace who is going to make the ultimate decision about bail.

Q: Is the information gathered at the arresting stage really going to have a significant impact on the outcome of the case?

A: It depends on what you say. When people say, “I know I am not guilty of this so I am going to give my entire story to the police officer and hope that it all gets sorted out,” you are in, what I call, an asymmetrical information situation.

You do not know what the person who has called police has said about you. You do not know what the police know or have been told. You have no idea what they claim you have done, and you have no way to respond to that. So, if you get up and simply start giving your version of events, even though it may appear innocent and may ultimately be innocent, the way it is going to be interpreted by police is very difficult for you to predict.

You only have half the story yourself, and the police are taking advantage of that, which is why it is vitally important for a person including the innocent — perhaps ever more so the innocent — to exercise their right to silence.

Once we know both sides of the case, we may say, “It is important that the police know where you were that night.” In that case, we will provide them with that information, but only after we have had the opportunity to see what the ramifications of giving up that information might be.

Q: When it comes to the arrest, on average what percentage of time have people who are summoned to the police station for questioning made the mistake and gone in and given a statement when they shouldn’t have?

A: Tragically, I would say most of the time. There is an overwhelming compulsion amongst law-abiding ordinary citizens to say, “This is a police officer, they are a person in authority, I have never been in trouble before and I am going to answer all of their questions.”

Even after we have told clients to remain silent, unfortunately, some clients will go ahead and say, “You know what? I have to tell my story.”

How often does that come back to bite them? You would be surprised how many times a case can turn on something that seems absolutely innocuous. For example, you say “I know that I was at the bar at 10:30,” and it turns out it was 11:30. That may have been just an honest mistake on your part, but you may have really undermined your credibility on a point that you could have been absolutely sure about if you had just taken the time to think before opening your mouth. That is just one example.

Q: Are there specific differences in how certain types of charges are handled? Let’s say for example, how are assault charges processed versus impaired driving charges?

A: Both domestic assault and impaired driving have become really hot button political items in the last number of years and both of those are subject to so-called zero tolerance provisions and very aggressive policing practices and very aggressive prosecutorial practices.

If you got into a dispute with a neighbour or a business partner or some guy on the street, the likelihood of getting released after being processed at the police station without a bail hearing is extremely high.

If the incident was identical, but it happens to have been with your husband, you are now almost certainly looking at a police officer who says, “I have to keep you in custody,” and a Crown Attorney who says, “I am not going to consent to this person’s release,” and a Judge and a Justice of the Peace who is very worried about releasing you on bail.

On the impaired driving issue, very specific technical elements are huge factors in the difference between guilt or innocence. Timing can be vital. The number of drinks, type of drink, quantity, location — all of these turn out to be very, very important facts and there is just no way that a lay person can know at the start of that case what is going to be important and what isn’t.

Q: In summary, you have expressed how important it is for those that are charged with anything to make sure they 1. Speak to a lawyer and 2. Exercise the legal right and freedom to say nothing during the arresting stage. Would you like to add anything?

A:Absolutely. You can’t get in trouble for not saying anything. If it turns out that there is something that should be said, we can always say it later. You can’t take back something that has come out of your mouth. You have a constitutional right to silence.

If you, or someone you care about, is dealing with criminal law issues in the Toronto,Ontario Region, contact Adler Bytensky Prutschi for a consultation.