Arrest: Charged with a Noncriminal Offense v. Charged with a Crime

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Arrest: Charged with a Noncriminal Offense v. Charged with a Crime

What happens if you’re charged with a noncriminal offense?
If you’re charged with an ordinance or traffic offense that is not a crime (such as speeding), you’ll be given a citation. In most cases you won’t be taken into custody. Police may NOT search you or your property without permission if you are not taken into custody for a noncriminal offense. The citation will usually give you a choice of paying a forfeiture or going to court. It will state a date for you to appear in court if you choose not to pay the forfeiture.
Your first court appearance is known as the arraignment, during which you enter a plea of “guilty,” “not guilty,” or “no contest.” The “no contest” plea means that you are not contesting the offense charged. The “no contest” plea will result in a conviction, but the conviction cannot be used against you in a lawsuit. For instance, let’s say you have an auto accident. As a result of the accident, you’re given a traffic citation for a violation. In this case you may want to plead “no contest,” in case the other driver decides to sue you.
In most ordinance or traffic cases, when you plead “not guilty” you’re given a pretrial date and a trial date. In noncriminal cases, you do not have an automatic right to a jury trial. Unless you specifically demand a jury trial and pay the required fee within 10 days of your initial appearance, your trial will be held before the judge. At the pretrial you’ll meet with the prosecutor and try to settle the case. For example, you may try to change a speeding charge to a lesser point violation.
If you can’t resolve the charge at pretrial, you must appear at the trial. You may or may not want to have an attorney, depending upon the seriousness of the offense, the status of your driver’s license, and so on.
If the judge finds you guilty and you don’t pay the forfeiture by the deadline for payment, your driver’s license may be suspended if the violation is for a traffic offense. Otherwise, you could be jailed or ordered to perform community service.
What happens if you’re charged with a crime?
Usually you’ll be taken into custody when you’re arrested. The police may read you your rights, photograph you, and take your fingerprints. If you are arrested without a warrant, a judicial magistrate must determine whether there is enough probable cause to charge you, and this usually must be done within 48 hours of your arrest. The 48-hour rule does not apply to an arrest with a warrant, because a judicial determination of probable cause has already been made to support issuing the warrant.
Remember that you have two important rights: the right to remain silent and the right to a lawyer. If you are indigent, an attorney from the State Public Defender’s office will be appointed. Police may not ask you any more questions if you claim either or both these basic rights. If you are unable to communicate with the court or your attorney because of a disability or a language barrier, an interpreter will be provided for you.
To be released from custody after your arrest, you may be required to post bail. In some cases, you can do this by a signature bond (a written promise to appear in court). In other cases, you may be required to provide either a secured surety bond (you put up property, such as a car or house), or cash (which may be posted by you or someone else). In addition, the judge may impose other conditions on you that he or she deems reasonable to assure your appearance or protects members of the community.
If you’re convicted of a misdemeanor, you may be imprisoned for up to one year. Any “time” you serve will be in the county jail or house of correction. A felony charge is much more serious, because it can mean a year or more in prison. In either case, it’s very wise to consult an attorney. If you can’t afford one, the judge will refer you to the State Public Defender’s office.

Sentencing Reforms Can Help Save Our Communities

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As an African-American who is a practicing criminal defense attorney, with a beautiful wife who is in law enforcement and a brother who is incarcerated, I know first-hand the devastation that follows from high incarceration rates. Wisconsin has the highest incarceration rates of African-American men in the nation, with more than half of Milwaukee County’s African-American men in their thirties having served time in prison. It is a moral imperative that all stakeholders collaborate to eliminate racial disparities throughout our criminal court system from start to finish. What Can Be Done?

 

1) Prevention

A critical component of sentencing reform starts with preventing individuals from traveling the road that leads to court appearances for sentencing in the first place. From my mother, a dedicated teacher with more than 30 years of service, I learned the value and long-term effects of a good, solid education. A good education brings opportunities and greater exposure to resources that individuals will be loath to squander. Moreover, education gives individuals a sense of self-worth and accomplishment.
For example, a program that helped me as a young teen was the Evans Scholars program. The Evans Scholars Foundation provides full academic scholarships to selected colleges and universities (including

Marquette and UW-Madison) for individuals whom have at least a B average in high school through their junior year, outstanding character, and financial need, and who have worked as a golf caddy for at least two

years. When I started, I did not have a clue about being a golf caddy, but Iearned. I earned the Evans Scholarship to Marquette and saved a good deal of my golf caddy earnings along the way. A high quality education empowers individuals to seek out positive experiences.

 

2) Diversion

Once an individual has been brought under the jurisdiction of the criminal court system, we should continue to focus on prevention through diversion. Where appropriate, prosecutors and defense attorneys should work in tandem throughout the pre-charging phase to determine whether a person (excluding those charged with violent offenses) should be formally charged with a crime. For many, the sheer process of being arrested and spending several days in jail is a sufficient jolt to their systems to correct their behavior. Tenets of this approach are prevalent in the concept of dosage probation—namely, giving an individual the “dose” of probation needed to correct behavior.
When formally charging an individual with a crime cannot be avoided, prosecutors and defense attorneys should work together to determine whether diversionary programs, such as deferred prosecution agreements and first-time offender programs, are appropriate. Under these options, an individual enters into a contract with the prosecutor requiring him or her to fulfill certain conditions. Upon successfully

completing the conditions, the case is either dismissed entirely or the charge is amended from a felony to a misdemeanor.
Furthermore, individuals with drug treatment or mental health needs should be screened and diverted to specialty courts such as drug treatment and mental health courts. Both of these specialty courts divert non-violent individuals from jail to treatment. Upon successful completion of the specialty court program, the case is either dismissed entirely or the charge amended from a felony to a misdemeanor.

 

3) Restoration

If an individual is ineligible for prevention or diversion, our focus should shift to restoration. We must institute mechanisms for restoring the individual’s ability to overcome collateral consequences of a criminal conviction, such as expunging the court record. For certain offenses committed by individuals 25 or younger, a court may order at the time of sentencing that the individual’s record be expunged upon successful completion of the sentence. Our legislature should look into widening the net of those eligible for expungement. Additionally, our legislature should give deep thought to determining whether our

current expungement statute should apply retroactively to include individuals sentenced before July 1, 2009. Prior to that date, a court could only expunge the court record if it was for a misdemeanor offense and the individual was under 21.

 

These are but a few of my thoughts. Sometimes I ponder whether stakeholders should be required to spend a night in prison to get a “real feel” for what it is to serve a sentence—not to punish stakeholders but rather to provide keen insight into decisions in which they play an essential role.

 

In an election year with political pundits pushing propaganda plus promises, let us avoid the hype and hone in on what has proven to work. I am in our criminal courts system day in and day out. Prevention, diversion, and restoration work—each producing tangible, direct results. Last September, I hosted the Second Chance Expungement Clinic at the Milwaukee Bar Association. I am happy to report that we helped a number of people with either expunging court records or removing arrest records. Today, some of them are gainfully employed and serve as living proof that this process works.