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 Attorney (Prosecutors).
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.