Just because you are arrested does not necessarily mean that you will be charged with a crime. It can feel confusing not to be charged, as you may feel like you are in limbo.
After the police open a criminal investigation, your case can be resolved in various ways. Understanding this and the legal process can help you take the necessary steps to protect your rights. It is vitally important to contact an experienced criminal defense attorney as early in the process as possible in order to understand your rights and work towards the best outcome possible.
Legal Definitions
The criminal justice system can be complicated. You may hear various legal terms, such as:
Arrest
An arrest is when police take a suspect into custody. For police to complete an arrest, they must have probable cause, meaning that the facts and circumstances within a law enforcement officer’s knowledge would lead a reasonable person to believe that a crime has been committed. An arrest may occur on the spot, such as after a traffic stop brought on by suspicion of drunk driving, or an arrest can occur later, such as when the police officer gets an arrest warrant issued by a magistrate and then executes the arrest.
Charge
After the police arrest a person, they hand the case over to the District Attorney’s Office, which has the legal authority to make prosecutorial decisions for the state. The DA’s Office has wide discretion in determining whether or not to charge someone with a crime. For misdemeanor cases, the district attorney charges people by “information,” which does not require a grand jury’s approval. A complaint and information is filed in a misdemeanor when the DA’s office decides (without oversight) that probable cause exists to support the allegation of the crime and accepts the case for prosecution.
Indictment
In felony cases, the district attorney must present the case to a grand jury. Grand jury proceedings are confidential. This is mostly a one-sided process in which the government presents evidence to the grand jury, which determines whether probable cause exists to file an indictment. If the grand jury determines that probable cause does not exist, they can issue a no-bill of indictment. If a no-bill is returned, the prosecution can resubmit the case to the grand jury (for instance, if it discovers additional evidence).
Dismissal of Charges
A dismissal of charges occurs when the district attorney decides that the criminal case should not move forward. In the vast majority of circumstances, in Texas state court is only the prosecutor who can trigger a dismissal. It is a misconception that a victim of a crime can decide to “drop the charges.” They cannot make this decision. A prosecutor files a motion to dismiss and then the judge signs the order formally dismissing the case.
A charge can be dismissed with prejudice or without prejudice. With prejudice means that the case cannot be refiled, but without prejudice means that the case can still be filed again.
Cases can be dismissed for all sorts of reasons. Dismissed “in the interest of justice” is a catchall phrasing prosectuors commonly use. It can cover situations where the prosecutor feels they don’t have enough evidence to move forward, where the alleged victim refuses to cooperate, et cetera. Another type of dismissal is a “conditional dismissal.” A conditional dismissal is when the prosecutor agrees to dismiss the case if the defendant completes certain conditions (like take a parenting class, anger management, et cetera). Pretrial diversion or pretrial intervention programs are similar to conditional dismissals, but result in immediate eligibility to expunge all records related to the arrest and criminal charge.
Statute of Limitations
The statute of limitations is a time limit that determines when legal action must be taken. In Texas, prosecutors generally have two years to file misdemeanor charges against a suspect (however, they have three years to file misdemeanor family violence cases). The prosecutor must file charges within the statute of limitations, or any future case they file can be dismissed. Notably, some cases have no limitation, such as murder, aggravated sexual assault, or certain crimes against children.
Determining Whether or Not to File Criminal Charges
Once the case is referred to the district attorney’s office for prosecution, the office has enormous discretion over whether or not to file criminal charges. However, even if the prosecutor decides not to file criminal charges, there is usually nothing that hinders the prosecutor from filing charges later. For example, the prosecution may believe that the investigation has not been fully developed and may decide to file criminal charges after more evidence is collected.
Reasons Why Criminal Charges Might Not Immediately Be Filed
Just because you are arrested for a crime does not mean that you have been charged with a crime. This is because the police and the district attorney’s office work separately. For example, the police can decide to arrest a person for a crime, but the prosecutor might decide not to file formal charges against them.
A district attorney is under no legal obligation to file criminal charges immediately after an arrest is made. The only deadline it is subject to is the statute of limitations. Therefore, a district attorney could wait months or even years to file a case. Dallas is notoriously slow in filing cases, leaving a lot of criminal defendants in limbo.
Some of the common reasons why a prosecutor may decide not to file charges include:
- The intake prosecutor decides there is not enough evidence to pursue a criminal charge.
- Evidence is still pending in the case, such as DNA or lab results.
- The police department provided the prosecutor with the offense report to file an information or present to a grand jury, but the prosecutor wants to wait to receive additional evidence before moving forward with the case.
- The magistrate determined there was no probable cause at the probable cause hearing.
Expunging Criminal Charges
If you were arrested, but no charges were ever filed against you through an indictment, information, or complaint, you can request an expunction before the statute of limitations expires if you were not charged with a felony arising out of the same transaction. When you can receive an expunction depends on the crime you could have been charged with, such as:
- At least 180 days from the date of arrest for a Class C misdemeanor
- At least one year from the date of arrest for a Class B or A misdemeanor
- At least three years for an offense punishable as a felony
An petition for expunction of records related to a case that was never filed (the legal term is “presented”) is often called a limited expunction. It is “limited” because it allows expunction of all records related to the arrest and charge except for the files held by the police department and District Attorney’s Office. A “full” exunction (which includes the police and DA’s files) can’t be granted until the statute of limitations for the case expires.
What to Do If You Have Been Arrested
If you have been arrested and are uncertain of the status of any criminal case related to you, you should take a proactive stance now. The first thing you should do if you have been arrested is to hire an experienced criminal defense lawyer. Don’t wait for the state to appoint a public defender after charges have been filed. A private attorney can get to work on your case immediately, conduct an independent investigation, and try to convince prosecutors and/or the grand jury not to file charges in the case.
At The Law Office of Mike Howard, we provide confidential initial consultations that allow prospective clients to get to know us. During a consultation, you can ask any questions that you have about the legal process, what to expect, and how a lawyer can help. We can also explain our fee structure and give you some tips on doing anything that could damage your case. If you choose to hire us, we can help you navigate the complex legal process and determine the optimal way to proceed. Contact us today to get started on mounting a defense.
Contact Our Experienced Criminal Defense Team Today
If you have been arrested and are concerned that you will soon be facing criminal charges, you should reach out to a criminal defense attorney for help. At The Law Office of Mike Howard, we have over 20 years of legal experience and have helped achieve over 120 dismissals since 2020. Contact us today to begin your confidential consultation.
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