Having practiced criminal law for over 20 years, both as a prosecutor and
as an Orlando criminal attorney, there are many questions I am frequently
asked about criminal cases. Here is one such question that I feel anyone
who is accused of a crime should know.
Q: If I am questioned by the police, but not arrested, is the case against me over?
A: Probably not. In cases where the police do not witness the crime in
progress and are called out to investigate a crime after it has happened,
the police must make an initial determination as to whether probable cause
exists. Usually that involves questioning any witnesses and/or the suspect
(if the suspect chooses to speak with the police – usually a bad
idea), and examining any physical evidence. If it appears that probable
cause does exist, the police may arrest the suspect (if present) for any
felony cases and for some misdemeanor cases. However many times law enforcement
does not immediately make an arrest, either because it is not clear whether
probable cause exists; or because the crime is a misdemeanor not witnessed
by the police. In these cases, the police generate a report and may either
seek an arrest warrant or forward the case to the Office of the State
These “non-arrest” cases are received by the prosecutor’s
office and reviewed to determine whether a crime was committed. If the
prosecutor determines that no probable cause existed; they do not file
charges. However, when probable cause exists, usually a prosecutor will
either get an arrest warrant or have a “summons” issued for
the suspect, sometimes even if the victim does not want to press charges.
Weeks, months, or even years after the original incident occurred, the
suspect may be at home or at or at work when, much to their surprise,
the police come knocking with an arrest warrant. Or, a person may get
pulled over for something simple, like speeding, but end up getting arrested
on a warrant that was issued from the old forgotten incident.
If you, or someone you know, is ever a suspect in a criminal case, and
you are not arrested at the time of the incident, do not assume that the
story has ended. Instead, get a criminal defense attorney. DO NOT try
to talk to anyone yourself (“You have the right to remain silent.
Anything you say will be used against you…”). An attorney
can monitor the progress of the case for you and give you a voice in the
process. Whether talking with the investigating police officer or discussing
the matter with the reviewing prosecutor, your attorney may be able to
offer insight or information that convinces law enforcement not to file charges.