Can arson charges be dismissed if the arrest procedure wasn't legal?

Question

What happens when someone has been in jail for over 50 days without being fingerprinted when he was processed into jail he also has not been mirandized since the county investigator came to the jail and tried to question my son on 21 counts of arson. My son refused to answer the questions without an attorney present. What are the chances of having some of the charges dropped since arrest procedures were not properly followed?

Gregory Crain · Answer

No.

Michael J. Breczinski · Answer

Slim to none. The violations would count toward suppressing illegally obtained evidence as a result of the violations. Get him a good attorney.

Mark Bruce · Answer

Not much.  Miranda allows the court to throw out statements taken in violation of rights.  Sounds like your son handled it right and did not make a statement.

Terry Nelson · Answer

CAN the case end up being reduced or dropped?  Sure.  Is that likely, just because you want it?  No.  You would have an evidence suppression issue to raise in a motion if prosecutors seek to introduce into evidence a statement or confession obtained after arrest without first advising you of Miranda rights.  It would be unusual for police to interrogate after arrest without a Miranda advisement; it is standard procedure.  You might be surprised to find the police reports claim you were so advised.    When charged with any crime, the proper questions are, can any evidence obtained in a test, search or confession be used against you, can you be convicted, and what can you do?  He apparently already followed the advice to exercise the 5th Amendment right to SHUT UP and do NOT talk to police or anyone about the case except with and through an attorney.     Raise all appropriate defenses with whatever witnesses, evidence and sympathies are available for legal arguments, for evidence suppression or other motions, or for trial.  If you don't know how to represent yourself effectively against an experienced prosecutor intending to convict, then hire an attorney who does, who will try to get a dismissal, charge reduction, diversion, program, or other decent outcome through plea bargain, or take it to trial if appropriate.

Nathaniel Shafer · Answer

There may be issues for suppression, depending on why your son was being held without being properly processed. Hire a talented attorney and the likelihood of your son getting a favorable outcome will improve.

Jason Savela · Answer

unlikely that these issues get the charges dismissed if he has not been before a judge, then you have an issue  if he is still in jail, I assume he has a public defender - set an appointment and discuss with them  or hire an attorney

Herschel Bullen · Answer

Virtually none.  Now if he was not arraigned within a reasonable time, or if he has been deprived of the right to speak to an attorney, or other such factors which might prejudice his defenses, that's different.  But for not being fingerprinted or Mirandized, those things do not provide a basis for dismissal of charges otherwise properly filed.

James Osak · Answer

ANY charge can be dismissed if the arrest procedures were violated. However . . . you have to PROVE it . . . and in today's "law and order" society the judges (who face re-election) and the prosecutors (who face re-election) don't want to be seen as "soft" on crime . . . so it gets tough to get these "politicians" to side with a defendant. Hire an attorney as it gets hard from here on out. Good luck.

Anthony Urie · Answer

Your son needs a lawyer very badly, he likely has the Public Defender.  It does not matter he was given a Miranda warning as he has not been questioned nor a confession obtained.  You son needs to work on providing a good alibi defense and or other defense.

Larry Dunn · Answer

Your question relates to improper procedure after the initial  arrest.  Assuming that the police had probable cause to make the arrest, the fact  that a  person is not fingerprinted does not affect the arrest procedure. A  person  is required to go before a judge and be informed as to the charges within   72 hours after the arrest. If the initial appearance or arraignment are not   timely, the person may be released from custody but the charges would not  be  affected. If the county district attorney or police attempt to question a  person  in spite of the person requesting to have an attorney present does  not affect  the case if the person refused to answer questions. If the  person answered  questions in violation of Miranda, the statements may be  excluded for use as  evidence but the charges may not be affected.

Thomas Tomko · Answer

The remedy for a Miranda violation is suppression of illegally obtained statements and/or suppression of illegally obtained evidence.  You should have your case reviewed by the attorney you hire to see how this principle may affect the defense in your son's case.

Mark Smith · Answer

21 counts of arson?  The charges will not be dropped. If he did not  give a  statement, which is a good thing, it makes no difference if they gave him   his rights. Fingerprints can be processed anytime. The best thing your son  can  do is keep his mouth shut and speak to a lawyer.

Dennis Roberts · Answer

Zero.  Miranda is only meaningful if he did confess  Without being given the  warnings.  If he didn't incriminate himself - no harm, no foul.

Jeffrey Pollock · Answer

The can dismiss all the charge without prejudice and then start over with a new arrest and re-file the charges.

Michael Palumbo · Answer

Nothing in your query indicates that the "arrest procedures" were not followed. If you are referring strictly to not being read rights then you watch too much TV.

Ernest Lee · Answer

Yes, it is possible. You would get the charges dismissed through what is called the Exclusionary Rule.

Stephen Freeborn · Answer

Miranda is only necessary if an officer ids going to question your son.  It sounds like your son refused to answer questions and the officer didn't ask any more of him.  If he has been in for 50 days...you don't say whether or not there was a probable cause determination.  You also mention nothing of bail, or whether any was set.  21 counts of arson sound very serious.  If you have concerns, hire an attorney to review the case.

Mark R. Thiessen · Answer

You will need to hire an attorney to get the charges dismissed.  If they were going to do it themselves, they would've already done it.

Jared Winter · Answer

Sounds like your son is facing a very serious case.  Arson charges are strikes.  If convicted he can do a lot of time for this.  You need to hire a good lawyer to represent him.  Getting free answers about arrest procedure violations are not going to help you at all.  An experienced criminal defense lawyer can evaluate the arrest, along with all the evidence in the case, and then defend your son.

Joseph Dane · Answer

The remedy in court for a Miranda violation is suppression of any resulting statement and any physical evidence discovered as a result of the improper procedure.  Will this automatically invalidate the entire case? Not necessarily, but these issues are always fact dependent. His attorney is going to have to examine the entire case in light of the violations, if any.

Timothy Byrne · Answer

Why have you not hired an attorney to file a harness corpus writ

Jonathan Baner · Answer

Zero... less than zero?  The points raise issues.  No Miranda might lead to suppression of statements - which he says he didn't make (he probably did).  No attorney means nothing if no statements were made, or if no attorney was requested.  Also - he was probably read his Miranda warnings upon arrest (or the cop will say that he was).  He probably needs to work with his defense attorney and focus on that relationship.

James Gandy · Answer

The police do not have to read the Miranda warning unless they plan on questioning the defendant while he is in custody.  The failure to read these warnings does not lead to the release of the defendant.  Even if they obtain statements in violation of these warnings, the remedy is not freedom.  Rather, it is the exclusion of the statements themselves.

Jeff Yeh · Answer

Your son did the right thing by not talking. What you need to do for him is hire an attorney to take over before your son becomes frustrated and begins talking.

Jennifer Leigh Gottschalk · Answer

You say that your son has refused to answer questions, insisting on a lawyer, but was never Mirandized. He has already been asserting his constitutional rights not to talk without counsel present; if he hasn't provided any incriminating info, then there is probably nothing to suppress interms of incriminating statements that are keeping him in jail. At this point I would be more concerned about finding out about bail and getting him out. If he/you can't afford a lawyer one should me appointed for him by now.

Gary Russell · Answer

There is no requirement that your son be fingerprinted. he must have been charged if he has been in custody that long. If not, that is a Constitutional violation. Finally, Miranda warnings are only needed if the police wishes to question him about what he was arrested for. Since has not spoken to them and has requested counsel there is no violation unless he has not been allowed to speak to an attorney.

Gregory Casale · Answer

Criminal charges can be dismissed if there is insufficient evidence to prosecute the case. That typically comes to be through a Motion to Suppress or a Motion to Dismiss. If you do not already have a lawyer, you should speak to and hire one as soon as possible. You may be able to suppress enough evidence to get your charges dismissed.

Steven Fairlie · Answer

You should talk with a lawyer to be sure about what was or was not legal. The fact that your son refused to answer questions makes the failure to Mirandize him moot.

Steven Alpers · Answer

I don't know how they booked him without fingerprinting, but if they have been taking him to court be cause they charged; him he probably cannot prove any sort of prejudice which would get the charges dismissed. It seems like everything was done properly on the questioning portion of the situation. You son should only discuss the facts with his lawyer, not you. You must assume whether you are talking to him in person or on the phone your conversation is being recorded.

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Can arson charges be dismissed if the arrest procedure wasn't legal?

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