Tuesday, January 16, 2018

Brother probably doesn’t have case regarding jail stay


Friday, March 26, 2010
by JIM KLEPPER

About the time it takes the cops to do their job issue, they can work as fast or as slow as they want and since they are human with feelings which could be hurt by anyone who is causing trouble or anyone who makes them mad can expect them to react just like anyone else.
About the time it takes the cops to do their job issue, they can work as fast or as slow as they want and since they are human with feelings which could be hurt by anyone who is causing trouble or anyone who makes them mad can expect them to react just like anyone else.

Q. My brother was charged with reckless driving, resisting arrest and fleeing police officers.

He said he did not do it, but they charged him just the same and took him to jail.  He then had to stay overnight in jail until the judge arrived the next morning for his arraignment hearing. He is complaining about how long it takes the cops to do their job and wonders if they worked slower so he would have to spend the night in jail.  How does this arrest system work and does he have a real complaint against the officers for taking too long?

A. Let’s use Ohio laws for your questions.  Here is the law in Ohio for reckless driving, resisting arrest and fleeing a police officer.

4511.20 Operation in willful or wanton disregard of the safety of persons or property.

(A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.

2921.33 Resisting arrest.

(A) No person, recklessly or by force, shall resist or interfere with a lawful arrest of the person or another.

2921.331 Failure to comply with order or signal of police officer.

(A) No person shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.

(B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person’s motor vehicle to a stop.

Just so you keep the alleged crimes in perspective under CSA 2010, reckless driving is 10 points; resisting arrest is zero points; and fleeing police officers is zero points for the driver in the Driver BASICs for everyone with a CDL.  A reckless driving conviction carries different penalties on your CDL MVR depending upon the state issuing your license.  Notice you are penalized two times for your reckless driving conviction, one by the feds on your CDL and one by the state on your CDL MVR.

You have not described his alleged crimes but the Ohio laws above should help you determine if your brother could be guilty as charged.

How does the arrest system work?  Let me give you a simple step-by-step process that will cover most jurisdictions.

First is the crime.  If you are charged with a petty crime of a minor offense you are usually able to resolve that matter with a summary proceeding which means you are able to pay the fine by mail and without going to court.  Misdemeanors and felonies are more complicated and you should consult an attorney on what you should do to protect yourself and to represent you if you determine the punishment is either not justified or too stringent.

Second is the booking, which is an administrative procedure, usually for misdemeanors and felonies, where you are taken to the police station where you are identified, fingerprinted, photographed, given paperwork describing the charges against you and usually placed in jail or allowed to post bond to leave.

Third is the arraignment, where you appear before a judge and the charges against you are read in open court and you have the choice to enter your plea of guilty, not guilty or even “nolo contendere” which means no contest.  The nolo plea has basically the same effect as a guilty plea, except in a civil hearing it can not be used as proof of guilt.

Fourth is bail or detention.  Bail may be set by the judge and if he does set bail, you are usually allowed to post cash, hire a bail bondsman or even possibly be set free on your own recognizance.  The bail bondsman will have to guarantee the bail and will charge you a fee and he will put a lien against property as collateral to guarantee you will appear back in court at the scheduled time and place.

Fifth is the preliminary hearing where a judge determines whether you should be held for trial.  The defense has no obligation to call a witness here, but the prosecutor must convince the judge the defendant (you) committed the crime.  Between the preliminary hearing and the trial, the lawyers file motions to include evidence and to exclude evidence based upon their need for that information in the trial to convict or defend you.

Sixth is the trial where the government must prove beyond a reasonable doubt you committed the crime.  Both sides may present evidence and witnesses to the judge or jury.  If the judge or jury determines you are guilty, you then have the opportunity to appeal your case to a higher court.  Caution; appeals can cost a lot of money and are only based upon a trial transcript and the objections raised at trial.

Seventh is the sentencing where the judge determines the punishment under the law and in most cases can modify that punishment to fit your crime.  Jail, probation and fines are the usual way to punish the guilty.  Sometimes the judge will order anger management, community service, drug and/or alcohol evaluations, drunk driving school, and restitution or just about anything the judge and the attorneys can agree upon.  Sometimes that agreement may include donations to a local charity and writing an apology or essay about the conviction.  Judges are kings of their courtroom so anything they do is usually upheld by other judges.

About the time it takes the cops to do their job issue, they can work as fast or as slow as they want and since they are human with feelings which could be hurt by anyone who is causing trouble or anyone who makes them mad can expect them to react just like anyone else.  They would not go out of their way to get you out of jail if you are causing trouble or made them angry.  Problem inmates have often gotten lost in the system when they were capable of being released. Therefore, I recommend that you be professional in any one-on-one action with police.  Do not give them an excuse to keep you overnight if they don’t have to.  The answer to your question would be: I do not believe you (your brother) would have an action against the officers or the department just because you spent the night and felt they were not working fast enough to make you happy.  In order for you to have an action against the police officers or their department, they would have to violate their own rules, regulations  and procedures regarding steps and actions required to properly book you on the charges against you.

Jim C. Klepper is president of Interstate Trucker Ltd., a law firm dedicated to legal defense of the nation's commercial drivers.  Interstate Trucker represents truck drivers throughout the 48 states on both moving and nonmoving violations. He is also president of Drivers Legal Plan, which allows member drivers access to his firm’s services at discounted rates.  A former<

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