FAQ: Criminal Law

When Can You Be Arrested?

  • If a police officer has a warrant for your arrest.
  • If a police officer believes you have violated the law.
  • If a police officer sees you violate, or try to violate, the law.

What Can the Police Do To You If You Are Arrested?

  • Search your body and clothing.
  • Search your belongings that are near to you at the time you are arrested.
  • Search you car if you are in it when the police stop you.
  • Fingerprint you.
  • Put you in a lineup.
  • Ask you questions.
  • Ask you to sign or write out or record a statement.
  • Ask you to provide a sample of your handwriting.
  • Ask you to consent to having a sample taken of your breath, blood, semen or hair.
  • Ask you to consent to a search of your home or other property you own.

When Do The Police Need A Search Warrant?

If you do not agree to allow the police to search your home, or some other property you own, the police can apply to a judge for a search warrant, which is a court order that allows the police to carry out the search without your consent. The police can also apply for an order to require you to provide a sample of your handwriting, breath, blood, semen or hair.

A judge may or may not grant the police a search warrant, depending on whether or not there are sufficient facts to provide probable cause to believe you committed or are committing a crime.

Can the Police Test You for Alcohol or Drugs?

The police can apply for an order to require you to submit to testing for alcohol or drugs under certain circumstances. If you have been driving a motor vehicle, Missouri laws allow the police to ask you to consent to such tests, and the results of the tests can be used against you in court.
You have the right to refuse to submit to the tests, but the fact that you refused may also be used against you in court. In addition, your driver’s license may be revoked or suspended if you refuse to submit to the tests.

A police officer may also ask you to perform field sobriety tests to decide if you are under the influence of drugs or alcohol. Although refusal to perform field sobriety tests can be used against you in court, in Missouri, it is your right to refuse to take the field sobriety tests. Similarly, you can refuse to take the portable breath test on the scene without direct adverse action to your driver’s license.

What Are Your Rights After the Arrest?

  • You may refuse to talk to the police or answer any questions. You may refuse to sign or write out or record a statement. In fact, we recommend that you do so.
  • You must be allowed to call a lawyer. If you cannot pay for a lawyer, you may insist that a lawyer be provided for you before you answer any questions.
  • Before you are asked any questions, the police must advise you of your “Miranda” rights.

What Are Your “Miranda” Rights?

The name “Miranda” comes from a case decided by the United States Supreme Court. The Court’s decision requires the police to advise you of certain rights before they ask you any questions. This is sometimes referred to as the “Miranda warning” and will go something like this: “You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.”

What Does “Waive Your Rights” Mean?

To voluntarily give up your rights. For example, you may decide not to talk with a lawyer. You may decide to answer questions and talk with the police. You may decide to write out or record a statement. You may decide to allow the police to search your home. You may decide to submit to certain tests.
You are never required to waive your rights. If you choose not to waive your rights, the fact that you did so cannot be used against you in court. Never waive your rights without first obtaining legal advice from an attorney.

Do You Have to Stay in Jail Until Your Trial?

No, you can ask for a bond to be set by a judge. You can be held by the police for a short time while waiting for the bond to be set. The judge will determine the conditions of the bond, including any amount of money that must be posted to guarantee that you will appear in court on the day required. Sometimes you may be released simply upon signing a promise to appear in court, if the judge decides that is appropriate.

Your family and your friends may help by posting your bond. They may have to deposit an amount of money with the court to meet the conditions set by the judge; or, they may have to prove that they own property in the amount of the bond. “Posting bail” means meeting the conditions set by the judge that allow you to be released from jail. However, if you fail to appear in court on the day required, your family and friends may lose the money or property that was posted.

You may decide to go to a bail bondsman to post bail for you. You or your family or friends pay the bondsman a fee, and in return the bondman posts bail for you. The fee is kept by the bondsman after your case is over as payment for the bond service. The police will usually have a list of bail bondsman in the area, or you can look in the yellow pages of the telephone book under Bail Bonds. The fee for the bondsman may be up to 10% of the bond amount. For example, if the bond is $5,000.00, the bondsman’s fee would be $500.00. This is money you will not get back. You must pay this to the bondsman before he will post the required bond.

When Do You Go To Court?

For minor offenses, the police give you a summons that tells you when you have to go to court. For more serious offenses, a judge will set the dates. If you have a lawyer, your lawyer will advise you when you need to appear in court. You may have to return to court several times before your case is finished.

Do You Need a Lawyer in Court?

A lawyer is trained in the court rules and procedures that govern how your case will be handled. In addition, a lawyer is trained to evaluate the facts and circumstances of your case, and give you the best advice as to what you should do. It is best for you to have a lawyer helping you. The judge will give you a chance to find a lawyer. If there is a chance that you could go to jail, and you cannot afford a lawyer, you may apply for public defender services, and, if determined to qualify, you will have a lawyer from the public defender’s office.

What Will Your Lawyer Do?

Your lawyer will first try to learn as much as possible about the facts of your case. Your lawyer will ask you about the circumstances that led to your arrest. It is in your interests to cooperate and be honest with your lawyer. What you tell your lawyer is private, and your lawyer is required to keep your conversations confidential. Your lawyer cannot reveal to the police or to the court what you say.

You should try to help your lawyer all you can. Tell the lawyer all you know about your case. Your lawyer will also seek information from other sources by asking the prosecutor to hand over any police reports about the incident and by interviewing possible witnesses. You should give your lawyer the names of any witnesses and any other information that will help your lawyer investigate your case.

What Happens in Court?

The judge may enter a “not guilty” plea for you automatically. This is done so that the case can be set over for you to get a lawyer and be prepared on the case. Sometimes the judge may ask you if you plead “guilty” or “not guilty.” How you answer will determine whether the case gets set over for sentencing, a review, a conference, or a trial. If you already have a lawyer, your lawyer will enter the plea for you, or will advise you how you should answer.

If you plead “not guilty,” the judge may set a date for your trial.
If you plead “guilty,” the judge will decide your punishment according to your crime and the circumstances of your case. Different crimes have different possible punishments. Your lawyer will explain to you the possible punishments in your case. In some cases, the judge may decide to put you on probation rather than put you in jail or prison. If so, the judge may put certain conditions on your probation. If you violate the conditions of you probation, you may be brought back into court, and the judge may revoke your probation and put you in jail or in prison, depending upon your crimes.

What is a Plea Agreement?

Sometimes the prosecutor and your lawyer negotiate an agreement to settle your case without a trial and with a guilty plea. A plea agreement involves pleading guilty to the charge against you, or a reduced charge, or only some of the charges. A plea agreement also involves an agreement for a particular sentence or probation.

Does the Judge Have to Accept the Plea Agreement?

NO! The final decision on punishment is up to the judge. However, if the judge refuses to accept the plea agreement, the judge must allow you to withdraw your plea of guilty, and you still have the right to a trial.

Can You Answer “Not Guilty” Even If You Are Guilty?

Under the law, you are presumed innocent until you are proven guilty. Furthermore, you have the right to have your case decided by a trial. You may have a trial only if you plead “not guilty.” Your lawyer will advise you about whether you should plead “guilty” or “not guilty,” but the final decision is up to you.

What Kind of Trial Will You Have?

You have the right to a jury trial automatically in felony cases, and upon request in misdemeanor cases. The jury will hear the evidence against you, and any evidence that you bring forth, and will decide whether you are guilty or not guilty. If you choose to waive a jury trial in a felony case, or not ask for a jury trial in a misdemeanor case, then a judge will hear the evidence and decide whether to return a verdict of guilty or not guilty. Your lawyer will advise you whether to have a jury trial or not.

Is Court Any Different For a Felony Charge?

Yes. Because felonies involve more serious crimes, more is involved.
After you are arrested, the prosecutor must present the evidence against you either to a judge in a preliminary hearing, or to a grand jury.

A preliminary hearing is held in a public courtroom, and you have the right to be present. A judge hears the evidence and decides whether the case is suitable for a trial. The charge or charges against you will then be filed by the prosecutor in an Information.

The grand jury meets in private, and you do not have the right to be present. The 12 citizens on the grand jury hear the evidence, and decide whether the case is suitable for a trial. The charge or charges against you will then be filed by the grand jury in an Indictment.

What Happens If You Are Found Guilty In a Trial?

In some cases, the jury will also recommend a punishment. The final decision as to punishment is up to the judge, but cannot be greater than the punishment recommended by the jury. In cases where the jury does not recommend punishment, the judge may sentence you to any punishment that is within the range of punishment for the particular crime as set forth in Missouri law. Most laws set a certain minimum and maximum punishment for a particular crime.

As an alternative, the judge may put you on probation with certain conditions. Such conditions may include restitution to be paid to the victims of the crime and community service work. You may also be required to undergo drug and alcohol testing, and to take certain classes or training. If you are put on probation and you violate the conditions of your probation, you can be brought back into court, and the judge can revoke your probation and impose a punishment according to your crime.