Monday, September 27, 2010

How can the district attorney bring MORE charges than what I was arrested for?

One of the most common frustrations we hear from clients facing criminal prosecution goes something like this: “The police only arrested me for one misdemeanor. When I showed up for my arraignment, I learned that the district attorney indicted me on that misdemeanor PLUS three felonies. How can they do that?”

Police officers investigate crimes, and when those police officers believe they have probable cause to do so, they arrest people for those crimes. But make no mistake about it; it is the job of the district attorney or prosecutor in the county where the alleged crime occurred to determine for which crimes, if any, the individual should be prosecuted. Often, a prosecutor will review the police reports and determine that there are additional or more severe charges to be prosecuted. On the other hand, a prosecutor may review a police report and determine that the police officer’s arrest was unwarranted or that if brought before a jury, they could not prove beyond a reasonable doubt that the defendant was guilty of such charge so they dismiss or “no complaint” the charge(s).

It is important to understand that initially the police officer holds the power: to arrest you; to take you to jail; to initiate the charges; to set the stage for prosecutors and judges to ultimately determine custody release, plea offers, and sentence. 

But you’re not done there. And you shouldn’t be surprised to show up at an initial court appearance and discover that you are facing much more than initially thought.

Sound complicated? It is. That’s why, if facing criminal prosecution, you need an experienced criminal lawyer to help you navigate the system. A seasoned defense lawyer will have a solid understanding of A) who the assigned prosecutor is; B) whether that prosecutor typically overcharges or is a reasonable person to work with in terms of plea negotiations/settlement; C) any unique or novel defenses for those particular charges (e.g., an experienced drug lawyer will be up to speed on any and all drug-offense-related constitutional defenses, and an experienced DUI lawyer will recognize the unique scientific challenges to a DUI arrest).  

Remember, an arrest or indictment does not equal game over. It’s just the beginning.

But the best criminal attorney will always be your secret weapon.


  1. Ok, so I got busted for possession of less than an ounce of pot, which is a misdemeanor in Oregon. But when I went to court the prosecutor said that based on the cop’s report there was enough evidence to charge me with attempt to distribute, which is total B.S., but that’s beside the point. But what you’re telling me is that even though the cop didn’t say anything about any attempt to distribute, the D.A., who wasn’t present during the bust, can choose to up the charges based on the cop’s report? If there was evidence at the time, wouldn’t the cop have busted me for attempt to distribute in addition to possession? Seems like a bunch of crap to me.

  2. Anon,

    Just because the DA charged it, doesn't mean they can prove it. We have no idea what the police reports said. But the bottom line is that DAs can review the evidence the police produce and decide that additional charges should be brought. If there is no evidence to substantiate an attempt to distrubute charge, a good criminal defense lawyer will have a field day. Good luck!

  3. I was arrested for Criminal Mischief for allegedly breaking a window. Then, when I showed up for court, I found out I was being charged with Burglary - what gives? They can do that?