Initial stages in a criminal case

Arrest and Booking

A criminal case begins when police arrest a person suspected of committing a misdemeanor or felony criminal offense. Legally, the police must have probable cause to arrest someone. Probable cause generally means that any reasonable police officer, with similar knowledge of the same facts and circumstances, would believe that a crime has been committed and the suspect committed the crime.

Defense attorneys often raise the issue of whether or not the arresting police officer had sufficient probable cause to make an arrest in a given case. If the judge agrees with defense counsel that probable cause was lacking, the court may suppress and exclude all evidence obtained by the police as a result of the unlawful arrest. Typically, winning a motion to suppress of this type will lead to dismissal of the criminal case.

Once arrested, the police may transport the suspected person to the police station for questioning or straight to the county jail for booking and processing. In the case of a DUI arrest, police will usually transport the suspected DUI driver to the jail or police station to take a breath test to determine the suspect’s blood alcohol concentration or to be examined by a special DRE officer; trained in the detection of signs of impairment by the use of street drugs, prescription drugs or inhalants.

“Booking” is the process in which the arresting officer submits a booking report and related documents to the jail and turns over custody of the suspect to the Sheriff. The Sheriff’s Deputies then incarcerate the suspect in the jail until the person is released on bail or on his own recognizance to appear in court. The released person will generally receive a court date from the jail staff written on a notice or release agreement form.

Intake and Screening

The arresting officer then submits his or her reports to the District Attorney or City Attorney (misdemeanor cases only) with statements or recommendations as to what charges should be filed and prosecuted.

The District Attorney and City Attorney are also known as prosecutors. The assigned prosecutor initially reads the police reports and decides what if any charges will be filed against the suspect. The prosecutor is free to follow the recommendations of the police officer or to add and subtract charges, as he or she considers appropriate under the law.

In DUI cases, reckless driving, reckless endangering, and criminal mischief are common companion charges that are filed by the prosecutor, even when not initially cited by the police if the circumstances warrant. If anyone was injured, assault will typically be added to the charges by the prosecutor. Sometimes this happens because an alleged victim will decide, after the incident that he or she was hurt by the DUI related accident. It is vitally important to have an expert DUI lawyer on your case if there is any possibility of this issue arising. In Oregon, an injury in a DUII case severely limits the power of the court to allow certain forms of leniency.

The prosecutor has a sworn duty to file charges only if he or she conscientiously believes that there exists sufficient evidence to prove the suspect’s guilt beyond a reasonable doubt. However, the police reports are generally slanted in the direction of the appearance of “guilt” of the accused person. Police officers are well trained to collect such evidence.   

Skilled defense attorneys frequently negotiate with the prosecutor on the point of whether or not there is sufficient evidence to prove a case beyond a reasonable doubt. If legal counsel is able to convince the prosecutor that there is not, then most prosecutors will dismiss or not file the case or contemplated charges. This is another reason why it is so important to retain an expert attorney to represent you ASAP. There is no better possible outcome in a criminal case, than having it not charged or dismissed.


If the prosecutor believes there is enough evidence to convict a suspect, he or she will file a criminal complaint, information or indictment with the court; or the prosecutor will endorse the charges originally cited by the police. The complaint or other charging instrument consists of individually stated criminal counts. Each count of a complaint sets forth a separate criminal offense or charge against a person.

When the complaint is filed, the court conducts an arraignment for which you must appear. [Failure to appear at arraignment will generally result in a bench warrant being issued for your arrest.] At arraignment, the court informs you that a criminal complaint has been filed by the prosecutor charging you with certain criminal offenses. Arraignment is a formal legal procedure in which a person usually must raise and assert the request to protect and preserve certain constitutional rights. Failure to do so may forever waive those rights.

You should have already retained an experienced lawyer, who specializes in your type of criminal case, by this point in the process. If not, you should do so immediately. If you were arrested for a DUI, then you should hire criminal defense lawyers who are experts in successfully resolving DUI cases.

Qualified legal counsel will know how to protect you in dealing with the prosecutor and in court. One of the beautiful things about being represented by a good lawyer is that the attorney can speak for you, with no danger to you. When an accused speaks for himself or herself in court, or to the police, or the prosecutor, anything they say can and will be used against them – as an admission. This is why judges generally advise people not to speak without consulting with their lawyer. It is also why police and prosecutors make the joke: “what part of can and will did you not understand?” This joke is not funny when it hurts you.