What should I do if I’m arrested?
If you are arrested in Wisconsin, the decision as to whether you should answer any questions is entirely your own. You should give this matter your careful consideration because oral statements, as well as written statements, will be received as evidence in court against you.
If you are offered any inducement to sign a document or if you are threatened, coerced or forced to sign anything, advise your attorney immediately and the senior police official in charge. If you do not have an attorney, you may ask to see one immediately.
If you are unable to afford a criminal defense attorney, you have a right to be put in touch with the Public Defender immediately. The Public Defender is a lawyer and is available to give you important legal advice following your arrest. If you are in doubt about whether you should talk with the arresting officer or other law enforcement officers, you should wait until you have spoken with an attorney before giving up your right to remain silent.
When are you under arrest?
You are arrested when law enforcement officers take you into custody or otherwise deprive you of your freedom of movement in any significant way, in order to hold you to answer for a criminal offense.
Under Wisconsin law, police officers are obligated to identify themselves, advise you that you are under arrest, and explain why, unless circumstances make it impossible for them to do so at that time.
You may, in fact, be under arrest even though no one has actually used the word “arrest” or any other comparable word. The fact that you have been deprived of your freedom of movement in a significant manner may amount legally to an arrest.
Ordinarily, private citizens do not have power of arrest in Wisconsin; but under limited circumstances a private party may make an arrest where an actual commission of a felony is involved.
Can a law enforcement officer detain you without arresting you?
Based upon reasonable suspicion that you may be involved in criminal activity, a police officer may require you to identify yourself and explain your presence at a particular time, without arresting you. Under Wisconsin law, the officer may not remove you from the immediate vicinity without making an arrest, unless you voluntarily accompany the officer to some other location.
If the officer has reasonable grounds to believe that you are armed, he or she may conduct a limited pat-down of your outer garments for the purpose of detecting weapons. If this “frisk” results in reasonable belief on the part of the officer that you are carrying a weapon, the officer may remove the suspicious object for protection. The officers must return to you any unlawful object found, unless they place you under arrest. Unless the officer places you under arrest, the frisk or search must be limited to suspected weapons.
The officer may ask you some questions in order to complete the field interrogation card. You have a constitutional right not to answer them, or give your name, unless the officer has an articulable suspicion that you are involved in a crime.
At the conclusion of this temporary detention the officer must either arrest you or let you go.
If you should enter a retail establishment where goods are placed on display and for sale, the merchant or the employees may detain you on the premises for a reasonable time for questioning if they have probable cause to believe that you have stolen or have attempted to steal goods for sale. Under such circumstances a police officer called to the scene may make an arrest for shoplifting even though the alleged offense was not committed in the officer’s presence.
When are you arrested with a warrant?
A police officer may arrest you at any time if he or she has a warrant for your arrest, or if the officer knows that a warrant for your arrest has been issued.
A warrant is an order issued by a court charging that you committed a particular crime and directing the sheriff and all police officers of the state to arrest you and bring you before the court. You may require the officer to read the warrant after you have been arrested.
An arrest warrant should not be confused with a search warrant.
When are you arrested without a warrant?
In Wisconsin, a police officer may make an arrest without a warrant under a variety of circumstances. Among those circumstances are:
1) when the officer knows that a warrant for your arrest has been issued and is still in effect even though the warrant may be held by another police officer;
2) when the arresting officer has good reason to believe that a felony has been or is being committed and that you are the person who has committed or is committing the felony.
A felony is a crime which is punishable by death or by imprisonment in the state penitentiary for a term of years. Examples of felonies include the more serious crimes such as murder, sexual battery, robbery, burglary, sale of narcotics, as well as grand larceny, keeping a gambling house and many others;
3) when a misdemeanor is committed in the presence of the officer.
Under Wisconsin law, there are a few specified misdemeanors for which an arrest may be made without a warrant, even when not committed in the presence of the arresting officer. These exceptions to the general rule are shoplifting, carrying a concealed weapon other than a firearm, possession of not more than twenty grams of marijuana, and a few others.
Can an officer use force when making an arrest?
The officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest. The legality of the arrest has nothing to do with whether or not you are ultimately convicted. As long as the officer has reasonable grounds for making the arrest at the time for the arrest, you cannot claim later that the arrest was unlawful merely because you were found not guilty.
Resisting arrest with violence is a felony under Wisconsin law. Resisting arrest without violence or offering to do violence is a misdemeanor. You could be convicted of either of these crimes, even if you were found not guilty of the crime for which you were arrested.
Obstructing an officer with violence is also a felony under Wisconsin law. Obstructing or interfering with an officer on duty without violence is a misdemeanor.
If you believe that your rights are being violated, make it a point to remember exactly what the police officer did and then advise your attorney concerning this at the earliest possible time.
When are you searched?
While the law of search and seizure is very complex, and often will depend on the facts and circumstances in a particular case, you should not resist a search with force; however, neither should you consent to an improper search. If you do object to a particular search, advise the officer who is conducting it that you do not consent, that you do object to the search and ask the officer to identify him or herself.
In most cases involving search and seizure issues, “reasonableness” of the search is the legal test without a search warrant. If police officers arrive at your premises armed with a search warrant, they may search only that area or portion authorized in the warrant itself. You are entitled to have a copy of the search warrant left with you and served on you if you are present.
If you are arrested in your home, the officers may conduct a limited search of the immediate area where you are arrested without a search warrant. They may also check the rest of the house for any hidden accomplices. They may seize any contraband, stolen property, instrumentalities or evidence of a crime that they discover in plain view in any portion of the house where the officers have a right to be.
Your automobile may also be impounded and inventoried if there is no qualified licensed driver or towing agent to take charge of it. If an officer is about to impound your car, tell the officer if you have a relative or friend who will come and get it, or that you have a preference of your own station, to tow your car.
What procedures are usually followed when you are arrested?
1) The officer will take you to a police station.
2) You will be advised generally as to the charges against you. However, these charges may be changed later and stated in more detail by the office of the prosecuting attorney or in some instances by the grand jury.
3) You may be required to participate in a lineup, to prepare a sample of your penmanship, or to speak phrases associated with the crime with which you are charged, to put on certain wearing apparel or to give a sample of your hair. You should ask to have your defense attorney present during any of these procedures. You have an absolute right to counsel, if you are asked to participate in a lineup after you have been formally charged by the prosecuting attorney or indicted by a grand jury.
4) You also may be required to be fingerprinted and photographed.
5) You will be arraigned at a court session or your attorney will file a written plea on your behalf. An arraignment is no more than a plea of guilty, not guilty, or no contest to the charge. If you plead not guilty, a trial date will be set. If you plead guilty or no contest, a sentencing date will be set, generally after the court has received a pre-sentence investigation report from probation and parole.
What happens to personal property when arrested?
If you should be booked into a jail, the police may take money and property from you for safekeeping. They will carefully inventory your money and property and give you a copy of the inventory.
At the time of your release or at the conclusion of your case, such money or property that was not seized as evidence in the case will be returned to you. You will be given an opportunity to sign the property list. You should make certain that the list includes all the items taken from you.
What are your rights after your arrest?
You have a right to know the crime or crimes with which you have been charged.
You have a right to know the identity of the police officers who are dealing with you. This is your right to statute and by custom.
You have the right to communicate by telephone with your attorney, family, friends, or bondsperson as soon as practicable after you have been brought into the police station. The police have a right to complete their booking procedures before you are allowed to use the telephone.
You have the right to be represented by counsel at all critical stages of your case. If you cannot afford a criminal defense attorney, the court will appoint an attorney to represent you free of charge, if you qualify under existing criteria as an insolvent person. This right pertains to any offense, however trivial, for which any imprisonment whatsoever might result.
Constitutional rights may be waived or given up voluntarily. Before you say or sign anything that might result in waiver of a constitutional right, it is in your best interest to contact a criminal defense lawyer and weigh your decision carefully.
What rights do you have when questioned by the police?
1) You have the right to remain silent.
2) If you choose to speak, anything you say can be used against you in court.
3) If you decide to answer any questions, you may stop at any time and all questioning will cease.
4) You have a right to consult with your attorney before answering any questions. You have the right to have your attorney present if you decide to answer any questions, and if you cannot afford a criminal defense attorney, one will be provided for you or appointed for you by the court without cost to you before any further questions may be asked.
How do you arrange for a lawyer?
If you don’t know a criminal defense lawyer in the area where you are arrested and have no lawyer in your home town whom you would call, you may contact The Wisconsin Bar statewide Lawyer Referral Service at (800) 728-7788 or your county or city bar association for the name of a criminal defense attorney on the local referral list. Any attorney you contact will be happy to discuss fees with you and give you some idea of the cost involved.
If you cannot afford a private defense lawyer, you should advise the judge of this fact at your first appearance or as soon after that as possible. The judge will ask you some questions to see if you are eligible for the services of an attorney at public expense. You will probably be asked to take an oath of indigency, which is a sworn statement as to your inability to afford a private attorney.
How are you released?
You may be released upon personal recognizance (your promise to appear in court when directed), or you may be released on bail, which involves the posting of either cash money or a surety bond as security for your court appearance. Bail bonds from licensed sureties are usually available at a cost of 10 percent of the amount of the bail.
If you are taken into custody and booked into the jail and remain there, you must be brought before a magistrate within 24 hours of your arrest. At that appearance, you may request that the magistrate lower your bail in consideration of your ties in the community, financial resources, employment record or any other factors, including your past criminal record and your past history of failure to appear in court when scheduled.
Upon arrival at the jail or shortly thereafter, you will be given an opportunity to contact your attorney. The attorney, in turn, may arrange for the posting of a bond and may appear with you in court and ask the court to lower the bail if it is believed to be excessive under the circumstances.
What is the criminal law?
The criminal law sets the acceptable limits of conduct in society. Everyone is expected to obey the criminal law under the penalty of punishment. The criminal law generally does not require you to perform an action; rather, it forbids an unlawful action. The State of Wisconsin and the federal government have their own set of criminal laws.
Criminal law consists of the criminal laws themselves and the law of criminal procedure.
The criminal law consists of the legal rules defining criminal conduct and how it is punished.
Criminal procedure consists mainly of the procedures used to prosecute a crime and the rights of the defendant.
Criminal laws must precisely define the conduct that they prohibit so that a person of average intelligence can understand the forbidden conduct and conform their behavior to the law. A criminal law that is difficult to interpret is unconstitutional and unenforceable.
What is a crime?
A crime is a wrong committed by a person against a state or the federal government, because a wrong is committed against all members of the community, not just the particular victim, the victim does not make the decision to prosecute the accused person. The state or federal government, acting as the people’s representative, prosecutes the crime. A crime is punishable by imprisonment, fine, restitution, or other penalty.
Actions that are crimes are also covered by the civil law of Torts. A person, who is injured by an action constituting a crime, may bring a civil lawsuit to obtain damages from the person who committed the criminal act.
What are the different types of crimes?
Under the common law (judge-made law) inherited from England, crimes are divided into two main categories – felonies and misdemeanors. The distinction between them is based on the crime’s seriousness and on the length of punishment.
Felonies are crimes generally punishable by more than one year’s imprisonment. You have the right to a jury trial when charged with a felony crime. The common law felonies include murder, rape, robbery, burglary, kidnapping, and treason.
Misdemeanors are crimes generally punishable by less than one year’s imprisonment. You have the right to a jury trial when charged with a misdemeanor if the crime is considered serious enough to warrant a jury trial.
The State of Wisconsin classifies crimes by felony / misdemeanor and then degree. There are five degrees of felony crimes: capital, life, first, second, and, third degree. Capital felonies, punishable by death, include the most serious crimes like murder and sexual battery on a child less than twelve years of age. Life felonies are punishable by a maximum of life imprisonment and include burglary with a battery, certain trafficking offenses, and second degree murder. A first degree felony is punishable by a maximum of thirty years in prison, a second degree felony– fifteen, and a third degree felony–five years. Misdemeanors are either first or second degree. A first degree misdemeanor, like simple battery for example, is punishable by a maximum of one year in the county jail. A second degree misdemeanor is punishable by sixty days maximum.
What are the sources of criminal law?
The Wisconsin State Legislature and the U.S. Congress enact criminal laws. In states having a common law system, state courts make criminal law based on the common law (judge-made-law) inherited from England. The current trend in Wisconsin is to transfer the development of criminal law from court to legislature.
State criminal laws
Traditionally, crime is considered a matter of state rather than federal concern. Because of this, most ordinary crimes are covered by state criminal laws. For example, a burglary that took place within the state, committed by local residents, is covered by state criminal laws and ordinarily will be prosecuted by local prosecutors.
Federal criminal laws
Congress does enact criminal laws in areas falling within the federal jurisdiction set out in the U.S. Constitution and concerning federal matters. Congress has enacted federal laws dealing with federal property, federal employees, federal taxes, receipt of federal benefits, and federally guaranteed civil rights. For example, it is a federal crime to rob a U.S. Post Office or to assault a federal employee.
Additionally, there are significant federal criminal laws covering matters dealing with interstate commerce. If interstate commerce is involved, these laws make ordinary criminal conduct covered by state laws a federal crime. Interstate commerce may involve the use of interstate means of communication (telephone, telegraph, or the U.S. Mail) in committing the crime.
What are the elements of a crime?
Crimes (except for strict liability crimes) have two basic elements: the guilty mind and the guilty act. The technical terms for these elements are their Latin names: “mens rea” meaning “guilty mind” and “actus reus” meaning the “thing done.” Generally, a crime is committed when a person commits a guilty act accompanied by a guilty mind.
Crimes also have specific elements that are contained in the definitions of a crime. For example, a murder is an intentional killing of a human being. The elements are that the accused must have (1) purposely or knowingly (2) caused a death (3) of a human being. To obtain a conviction, the state must prove all of the elements of a crime beyond a reasonable doubt.
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