Being held without charges can be a terrifying experience. One thing that you should know, if you are arrested, is that state prosecutors have to file charges against you within a reasonable time period, or the police holding you in custody must let you go. What constitutes a “reasonable” time period can be a complicated question, but if you are wondering how long can police hold you without charge, it is important for you to understand that you do still have rights, even while in custody. One of those rights is the right to legal representation, so consider calling 603-707-4800 to speak with a criminal defense attorney from Friedman & Bresaw, PLLC.
Understanding Your Constitutional Rights
There are three Amendments to the United States Constitution that include provisions outlining an individual’s rights at various points in the process that leads from arrest to (potentially) trial:
- From the 4th Amendment: protection against unreasonable search and seizure
- From the 5th Amendment: right to remain silent; protection against being deprived of liberty (i.e., detained) without “due process of law”
- From the 6th Amendment: right of the accused to a speedy trial
All three of these Amendments are located in the portion of the Constitution known as the Bill of Rights.
Protection Against Unreasonable Search and Seizure
The protections of the 4th Amendment apply primarily to the arrest process itself (or to seizures of property). However, understanding your rights under this amendment can be crucial in determining an individual’s legal options for defense, because if the arresting law enforcement personnel fail to respect this right while taking a suspect into custody then prosecutors may not file charges due to the likelihood of dismissal. State prosecutors are generally reluctant to charge an individual when they think the case is likely to be dismissed, so in some cases a portion of the delay between arrest and charging may be due to prosecutors’ review of the circumstances surrounding the arrest itself, as prosecutors work to determine whether the charges suggested by law enforcement look viable in light of police records pertaining to the arrest.
For the purpose of understanding your own rights when stopped by police, or during and immediately following an arrest, it may help to keep in mind the “reasonable suspicion” test commonly applied by law enforcement officers, including the New Hampshire State Police. While the 4th Amendment requires “probable cause” for a judge to issue a warrant for an individual’s arrest, police officers operating in the field may stop, and potentially detain, individuals encountered in public without a court-issued warrant upon “reasonable suspicion” that the individual has just violated the law, is about to violate the law, or is in fact in the middle of violating the law (this would be the type of suspicion involved in many DUI stops). The arresting officer must be able to clearly articulate the “facts and circumstances” that led them to suspect the arrested individual of criminal activity or intent.
Due Process
The portion of the 5th Amendment with which many Americans are most familiar is the protection against being required to incriminate oneself. This is the Constitutional protection that guarantees both the right to remain silent, after an arrest, and the right to refrain from answering potentially incriminating questions while on the witness stand. Exercising the right to remain silent while in police custody can indeed play an important role in the outcome of a case, and the criminal defense attorneys with Friedman & Bresaw, PLLC typically recommend that individuals who have been arrested in New Hampshire take advantage of the protection the 5th Amendment offers to decline answering questions without the benefit of legal representation. However, there is another facet of the 5th Amendment that may also be important in considering the rights an individual has after arrest and prior to being charged with a crime. This is the “due process” clause, which specifies that no one may be “deprived of … liberty … without due process of law,” according to the Bill of Rights as recorded by the Library of Congress.
Right to a Speedy Trial
The remaining provision of the Bill of Rights that often has relevance for individuals being held without charges is found in the 6th Amendment, a portion of which guarantees the right of the “accused” to a “speedy trial.” If how long can police hold you without charge? is a question on your mind, there are two more questions that may also be looming:
- What qualifies as a “speedy” trial?
- What portion of the prosecutorial process activates an individual’s right to a speedy trial under the 6th Amendment?
According to Constitutional annotations put forward by the United States Congress, the Supreme Court of the United States answered the second question in 1971, as part of the Court’s decision in United States v. Marion.
Is Arrested the Same as Accused?
While the Marion decision rejected the idea that the government was bound to bring charges within a specific window after becoming aware of a crime, or of evidence of criminal activity, the Court based its rejection on the fact that the defendants who had sought from the lower court a dismissal of their case on 6th Amendment grounds had not actually been arrested or detained prior to their indictment, and that the delay in bringing charges did not meaningfully deprive the defendants of liberty under the 6th Amendment. In the same decision, the court also stated that “Invocation” of the 6th Amendment right to a speedy trial “need not await indictment … or other formal charge,” while also listing “the actual restraints imposed by arrest” as among the triggers that might “engage” an individual’s right to a speedy trial.
How Long Do Prosecutors Have To File Charges?
The other question, regarding the criteria for a “speedy” trial, is more difficult to answer, in large part because the definition of “speedy” has left substantial room for interpretation. In order to understand where and why this interpretation takes place, it is helpful to take a look at the intersection between state laws and the individual rights protected by the United States Constitution.
Federal Law vs. State Interpretations
As the annotations provided by the United States Congress point out, the due process protections of the 5th Amendment were explicitly made binding on the separate states by the Fourteenth Amendment, introduced in the aftermath of the Civil War. Other protections in the Bill of Rights have been subject to somewhat varied application, with the Supreme Court deciding, according to the Congressional Research Service (CRS), on a “case-by-case” basis whether all states are bound by specific provisions within the Bill of Rights.
The Right to a Speedy Trial Applies to States
The CRS provides a chart showing each provision from each article in the Bill of Rights, and specifying whether the nation’s highest court has held the respective provision to apply to state and local governments, along with the federal government. Since 1967, the right to a speedy trial has been counted among the 6th Amendment rights that apply to state as well as federal cases.
“Without Unreasonable Delay” – From Arrest to Arraignment in New Hampshire
Even though the right to a speedy trial has been held to apply to cases charged (or arrests made) at the state level, rather than by the federal government, the precise implementation has been left largely to the states. Many have written into their statutes provisions specifying the length of time a suspect can be held in police custody before being charged with a crime or released; 72 hours tends to be a common period, although California is noted for applying a stricter timeframe and requiring officials to release suspects if not charged within 48 hours of their arrest.
In the state of New Hampshire, while RSA 594:19-a does require law enforcement personnel making an arrest to deliver the arrested individual to the court “without unreasonable delay,” the statute does not specify what would constitute a reasonable vs. unreasonable delay. This framing both gives prosecutors more latitude than they enjoy in some other states, and also provides defense attorneys with a potential argument: If the defense can show that the delay between arrest and arraignment was “unreasonable,” then they may be able to mount an effective argument that the defendant’s rights have been violated. Because the risks of a misstep on this point can be high, you may wish to work with an experienced defense attorney who is familiar with how the New Hampshire courts work and prepared to build an argument incorporating case law that shows how courts have decided similar cases.
Use Your Time in Custody To Contact a Lawyer
If you have been arrested pending charges, consider using the time in custody to exercise your right to an attorney. Getting an experienced criminal defense lawyer involved early in the case can make the understandably overwhelming experience of being held in police custody somewhat easier to navigate. In addition to helping you determine how long can police hold you without charge in your particular case, a defense attorney will likely also be familiar with the processes that you will need to follow in order to secure release, either on bail after charges or without charges if none are filed within a reasonable timeframe. Criminal defense attorneys frequently act as advocates for clients in pre-charge detention, so consider making a call to Friedman & Bresaw, PLLC to discuss your case. Call 603-707-4800 in Belknap County and throughout the Lakes Region.
