Last updated on October 22nd, 2018
Police in Virginia are required to follow certain procedures when arresting or searching individuals, and sometimes it can be hard to keep track of what rights you have during this process. For this reason its important to understand the ins and outs of the arrest procedure.
This article will cover three commonly misunderstood areas of arrest procedure: Miranda Rights, searches, and charges.
Your Miranda Rights
In Virginia, police are required to read a “Miranda Warning” before interrogating you. This is to make sure that you understand that you have the following rights:
- You have the right to remain silent. Anything you say can and will 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.
They will then ask you if you understand these rights. If your primary language is not English, Virginia law requires the police to provide an interpreter for you. Don’t be afraid to ask for one, at this or any other stage of your arrest.
Let’s go over these in detail.
The Right to Remain Silent
The first right you should consider is your right to remain silent. You are not required to answer questions the police ask you. The police may not hold this silence against you, or use it to prove that you are guilty of a crime.
For this reason you should avoid speaking without a lawyer present. Even if you are innocent, it can be easy to say the wrong thing without meaning to.
If you are arrested while driving the only information you are required to provide to the police is a drivers license. If you were not driving you don’t even have to provide that information. Do not under any circumstances provide a false ID or name to the arresting officer. Doing so is a Class 1 Misdemeanor (the most severe kind) under Virginia law.
You should always use your right to remain silent when being questioned the police so you can avoid accidentally incriminating yourself. It is very common for people to give incriminating information to the police, even when they are innocent of a crime.
Remember that if an officer plans to arrest you, what you say to them is very unlikely to change their mind. Speaking to them can only make things worse for you.
If you feel that the police are threatening you, remain silent and write down what they say. If possible, attempt to document names, badge numbers, and other information. Provide this information to your lawyer as soon as possible.
The Right to an Attorney
The police are required to allow you to contact an attorney as soon as possible. This should be the first thing that you do when you are taken into police custody. Calmly and clearly state that you want your attorney present as soon as you are arrested. If you don’t tell them clearly, they can keep questioning you without your attorney present.
You might not be able to get in touch with your attorney right away. Even if that happens, you should remain silent until your attorney can be reached.
If you cannot afford a lawyer, the state is required to appoint one for you. However, this should be an option of last resort. Court-appointed attorneys frequently have large numbers of clients and restrictive schedules, and probably will not provide the same individual attention as a private attorney.
What if I don’t receive a Miranda Warning?
In some situations, you might not receive a Miranda warning. For example, Virginia law does not require the police to read you the Miranda Warning if you are detained outside of police custody.
However, the same rights still apply. You are never obligated to answer questions without a lawyer present. Be polite and provide your ID if you wish, but do not say anything else.
Once the police arrest you they may search you or your belongings if they believe you are carrying a weapon or if they have probable cause that you committed a crime.
If the police have a reason to believe you might be armed, they may pat you down to search for weapons. Virginia also allows police to employ metal detectors for this purpose.
The purpose of this search is to determine if you are armed. However, other evidence found during the pat down may or may not be usable in the trial. If the police find an illicit substance or other contraband while patting you down, try to remember the event in detail and tell your lawyer about it.
Search of your Person or Vehicle
To do more than a pat-down for weapons, a police officer needs “probable cause,” a valid search warrant, or your consent. The same applies to searching your vehicle or home.
“Probable cause” refers to direct evidence that a crime has probably been committed. This might be the testimony of another witness, the officer’s sight or smell of an illicit substance, or the reaction of a drug-sniffing dog.
Even if you are innocent, you should politely refuse to consent to any search. It’s always possible that your car or home has been used for illegal activity without your knowledge.
In Virginia, police are only required to present the charges against you after a state prosecutor files them. This means that there may be a period of time between when you are arrested and when you receive the formal charges against you.
Always let your attorney know what jail you are in, and how long you have been there. If you have been held for more than 72 hours, the police department may be in violation of your right to a speedy trial.
In theory, the police should follow these procedures to the letter. Unfortunately, mistakes and deliberate abuse do happen.
If you feel that you have been a victim of police ignorance or malice, document everything and get in contact with an experienced lawyer. If you have been injured, seek medical attention before documenting your injuries. Divulge these details to your lawyer as soon as you can.