Being arrested can be an alarming experience. Most people who face arrest have questions about what they can expect once they are in police custody. An overview of the criminal process may help put you in position to recognize and actively exercise your legal rights after an arrest, but is no substitute for personalized guidance. To request that guidance, consider calling 603-707-4800 to schedule a consultation with the criminal defense team at Friedman & Bresaw, PLLC.
What Happens After an Arrest?
The steps taken immediately after an arrest will likely depend to some extent on the circumstances of the arrest itself. Although you will have the same legal rights in either case, an arrest made pursuant to a warrant issued by a judge may unfold slightly differently from an arrest made “in the field” for probable cause.
The crime on suspicion of which an individual is arrested may have some influence as well; for instance, if you are arrested at a sobriety checkpoint on suspicion of DUI (driving under the influence of alcohol or drugs), then the arresting officer will likely make it a priority to get you to the precinct to ensure the timely administration of a chemical test to check your system for the presence of substances that can impair driving ability; this chemical testing is not necessarily an urgent step in the criminal process following arrests made under other circumstances. Understanding some of the most common factors that can influence the initial phase of the criminal process after your arrest can help you to recognize what to expect and set you up to protect your rights if appropriate procedures are not followed.
If You Have an Injury or Medical Concern
One of the first and most frequent factors that can affect how law enforcement procedures are carried out immediately after an arrest is the presence of an injury or other medical concern. For a variety of reasons, it is unfortunately not at all unusual for an arrest to take place under circumstances in which injuries are likely. In many cases these injuries may not be directly related to the arrest itself, or even to the arrested person’s interaction with law enforcement officials; police officers routinely make arrests when they are called to the scene of a violent altercation, and sometimes when responding to the scene of a motor vehicle crash as well. Both of these situations, and many others, can easily lead to injuries, with or without police intervention.
If law enforcement personnel suspect that you are injured or otherwise physically unwell at the time you are taken into custody, regardless of cause, they will likely attempt to get a medical evaluation and treatment before continuing with other aspects of post-arrest processing. Keep in mind that you have a right to timely medical care and a reasonable expectation of physical safety while you are in police custody. If you believe you have an injury of which the arresting officers may not be aware, or a medical condition that needs to be addressed swiftly, do not hesitate to bring your medical needs to the officers’ attention.
Drug or Alcohol Testing
If you are arrested on suspicion of DUI/DWI anywhere in New Hampshire, one of the first steps you can expect the arresting officer to take is to get you to the police precinct for a chemical test to determine your blood alcohol content (BAC) and identify any other potentially impairing substances that may be in your system. However, this is not the only situation in which you may be asked to take, or subject to taking, a chemical test of your blood, breath, or urine. If you require medical care immediately after your arrest, for instance, and the medical staff treating you suspect that you may have chemicals in your bloodstream or digestive system that could affect how you respond to certain medications, they may conduct drug or alcohol testing to assist in determining your course of treatment.
Individuals arrested on suspicion of illegally possessing a controlled substance may sometimes also be asked to take a chemical test; survey results released by the Quattrone Center for the Fair Administration of Justice in December 2023, found that the vast majority of arrests for suspected possession of illegal drugs involved a chemical test for the suspected substance. The circumstances under which you are asked to take a chemical test after an arrest may make a difference in how your case proceeds, however, as New Hampshire’s “implied consent” law applies to contexts involving vehicle operation (or suspected vehicle operation), and not necessarily to other scenarios. You may wish to consider sitting down with an experienced criminal defense lawyer from Friedman & Bresaw, PLLC to discuss the legalities of the post-arrest criminal process in your situation.
After Booking
Police officers may or may not attempt to question an arrested individual at this stage of the criminal process. How officers proceed after booking an arrested person into the system can depend partly on the crime of which the individual has been accused, as well as information gleaned from any chemical tests. Whether you are given any such tests or not, keep in mind that you have the right to remain silent after an arrest in New Hampshire – regardless of the reason for the arrest. You also have the right to have an attorney present during questioning. If you are not immediately given the opportunity to contact an attorney, you still do not have to answer any questions until you are represented by legal counsel.
The partners at Friedman & Bresaw, PLLC spent years in the New Hampshire Public Defenders’ office, providing state-funded legal representation to individuals who could not afford to cover the costs of hiring their own criminal defense attorneys. This background perhaps helps to explain why our team is so passionate about protecting suspects’ constitutional rights during the early stages of the criminal process after an arrest – but even attorneys who have never worked as public defenders will often still advise clients not to answer any questions without an attorney present. Accidental self-incrimination – irrespective of actual guilt – is unfortunately an all too familiar scenario in criminal defense settings.
Charging Recommendations and Detention Hearing
Once an arrested person has been processed into the system, the arresting officer will generally file a report and forward a charging recommendation to prosecutors. What this looks like can vary slightly depending on whether the arrest was made pursuant to a warrant issued by a New Hampshire judge as part of an ongoing investigation vs. being a probable cause arrest decided in the field, primarily because an arrest made in executing a warrant will likely be already associated with a specific area of suspected criminal activity and prosecutors may even be anticipating the report.
Proceedings in criminal cases can also look slightly different for New Hampshire courts in the District Division vs. in the Superior Courts. Because cases in the District Division Circuit Courts are more common than their counterparts, the following considerations are tailored to District Division proceedings.
In Custody
Prosecutors, rather than police, will ultimately have the responsibility for deciding whether to pursue charges. They may sometimes take a few days to review the evidence submitted by police and determine whether there is enough to proceed with seeking a conviction. Some states specify the number of days or hours prosecutors may take while an accused person remains in custody; if the individual is released pending charges, then the timeline may be more flexible. In New Hampshire, RSA 594:19-a, which concerns release or detention in criminal cases following an arrest, merely requires that an individual arrested in the state be taken before a judge “without unreasonable delay.”
Detention Hearing
Another way the steps in the criminal process may play out somewhat differently after an arrest made in executing a warrant issued by a judge vs. after an arrest made on the basis of a police officer’s judgment in the field is in the requirement for a detention hearing regarding, also known as a Gerstein Determination, regarding the viability of the “probable cause” alleged by the arresting officer. If a defendant is being held in custody, Rule 4(e) of New Hampshire’s Rules of Criminal Procedure (RCrimP) requires a probable cause hearing to be held no more than 48 hours after any arrest made without a warrant issued by a judge. Defendants do not have the right to be present during a probable cause hearing, since this step in the criminal process is intended primarily to verify the probable cause identified by the arresting officer and eliminate from the criminal justice system any arrests whose probable cause affidavits do not stand up to scrutiny, but it can be an important step in the proceedings nonetheless.
Arraignment
An arraignment is the stage in the criminal process in which a defendant is formally presented with charges and given the chance to enter a plea. Defendants may waive their rights to this step under certain circumstances, so you may wish to discuss the practicalities of your attendance with an attorney. If a defendant does not waive his or her right to an arraignment, the structure and requirements of the proceeding can vary slightly depending on the classification of charges.
Right to an Attorney
Generally speaking, in New Hampshire the Rules of Criminal Procedure group cases into two categories for the purposes of conducting arraignments:
- Felonies and Class A misdemeanors
- Class B misdemeanors and violations
Defendants are only eligible for representation by a public defender at the arraignment if they are charged with an offense in the “felonies and Class A misdemeanors” category. Defendants who retain counsel at their own expense may have their personal attorneys present, regardless of the charges.
Severity of Charges
RCrimP 4(g)(1) specifies that any misdemeanor charges will be presumed to be Class B misdemeanors unless one of the following conditions applies:
- Prosecutors file, prior to the arraignment, a notice of intent to seek Class A misdemeanor penalties
- An existing New Hampshire law already specifies that the actions of which the defendant is accused are to be considered Class A misdemeanors
In arraignments for cases involving a felony charge, the court will automatically enter a “no plea” on behalf of the defendant and schedule the case for a formal Probable Cause hearing. For all other cases, the defendant will be asked to enter a plea of guilty or not guilty, or – with permission from the court – a plea of nolo contendere (”no contest”). Scheduling for a trial will depend on the plea entered.
Speak With a New Hampshire Criminal Defense Attorney
Criminal charges are always significant events, with the potential to alter the course of an individual’s life. If you have been arrested and accused of a crime, it is important for you to understand how the criminal process works and be prepared to defend your rights. To get direct advice more tailored to your individual situation, consider exercising your right to an attorney and contacting the experienced criminal defense team at Friedman & Bresaw, PLLC. Call 603-707-4800 to book a consultation.
