The first thing you should do is relax. Next, you should keep your mouth shut. If the police officer reads you your Miranda rights—that is, “you have the right to be silent…”—then remain silent!
The police will take down anything remotely incriminating you say and will report it to the District Attorney to make a case against you. If you decide to talk, the police may say that they want to help and that telling the truth will make everything all right. They are lying. The police are allowed to lie during interrogations in order to obtain incriminating statements.
Not only should you remain silent, you should ask for a lawyer. You should say, “I don’t want to talk to you and I want to talk to a lawyer.” The questioning must immediately stop.
If you go to jail, you must be brought before a judge within two court days for arraignment. For less serious crimes, you may be released on your own recognizance (O.R.) or on supervised O.R. A person on O.R. will be released after s/he promises to come back to court, or agrees to keep in touch with the county probation department.
The first phone call you make should be to someone who can contact your friends and family and who can vouch that you will not flee. The O.R. people look at the individual’s ties to the community, the seriousness of the offense, and the likelihood that the accused will return to court.
Use common sense in choosing whom to call. For example, don’t call your spouse if you have just been arrested for a domestic violence incident. One of my clients actually did this. The jail calls added charges for violating the restraining order and destroyed his defense. The jail routinely records all the calls made, so be careful what you say.
So, should you wait to be released on supervised O.R., or should you seek bail?
O.R. is often granted for minor cases, so it may be in your best interest to wait to be released. In more serious cases, it is better to get out and go back to work to show that you are a productive and responsible member of society. Conviction and sentencing statistics indicate that out-of-custody defendants obtain better outcomes.
If the bail is too high, you could either call a bail bondsman or post a property bond. Bail bondsmen typically charge 10 percent for their services. A property bond uses the equity in real property to post the bail amount. Make sure that the bond is exonerated or released at the end of the case and not before.
To recap, don’t make any statements, ask to talk to a lawyer, call someone you trust, post a bond if the case is really serious, and wait to see a judge before you decide to bail out. Give pre-trial services the chance to recommend O.R. for your case.
Naresh Rajan is a graduate of the University of California, Berkeley, and Santa Clara University’s School of Law. He is an attorney in San Mateo County. Email firstname.lastname@example.org