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Samuel II
Samuel II, Attorney at Law
Category: Criminal Law
Satisfied Customers: 27009
Experience:  Handle criminal matters in both state and federal courts.
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I was questioned with out consent over 2 and half years ago

Customer Question

I was questioned for sex with out consent over 2 and half years ago no charges have been filed but it is showing up on my background check as outstanding criminal wants or warrants.. what should I do
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Samuel II replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

Expert:  Samuel II replied 1 year ago.

If the warrant is showing on a background check, then it means one was issued and you just have not been arrested, yet.

Expert:  Samuel II replied 1 year ago.

And so given the circumstances for which it was issued - a serious sexual offense - I suggest you should consider immediately consulting with a local criminal defense attorney who can review the entire matter and maybe have the warrant quashed.

Expert:  Samuel II replied 1 year ago.

If you to do this on your own, there is a possibility you could be arrested. tAlso with the outstanding warrant, you also risk arrest if you are say stopped for a traffic violation.

Expert:  Samuel II replied 1 year ago.

So you need to have a local attorney review the matter, contact the court about the warrant and ensure that is still active and figure out if it because there was no arrest, if you are charged or if the matter should be closed.

Expert:  Samuel II replied 1 year ago.

Please let me know if you have other questions in this regard. Keep in mind, I can only answer and provide information for what you ask. I do not know what you need to know, unless you tell me. Please rate positive as this is how I get credit for my time and information.

Thank you

Customer: replied 1 year ago.
There isn't a warrant but it's showed up on my tsa background. I don't understand why if no charges have been filed. It's been 2 and half years since I was questioned
Expert:  Samuel II replied 1 year ago.

Thank you.

If it is showing up, there is a warrant that is outstanding.

If they filed charges and could not local you, a warrant would be issued. You need to ascertain why the warrant is showing up as Outstanding. A warrant will remain active until it is served or until it is quashed or recalled.

Just because you never got the notification of charges, does not mean none were filed.

Expert:  Samuel II replied 1 year ago.

If you call the clerk of the court in the state and county where the warrant was issued they can tell you or anyone who would call on you behalf, why the warrant is showing as active and if outstanding charges are pending.

The DA could have filed charges, and it just has not been served yet

Customer: replied 1 year ago.
Wants and a warrant are different right.
And I have been in contact with law enforcement and nothing has came up
Expert:  Samuel II replied 1 year ago.

If the charges were filed and the warrant issued withing the Statute of limitations, then it is valid.

No. Wants and warrants mean there is an outstanding warrant. A background check should not be revealing a warrant that has been served or quashed. It should only reveal one that is outstanding and active.

Expert:  Samuel II replied 1 year ago.

If you were served the warrant and arrested and the matter was closed, then the court will need to have a Motion to filed to have the warrant removed.

Expert:  Samuel II replied 1 year ago.

If you were only questioned, as you state, then it is possible the charges were filed, and a warrant issued which is now outstanding.

Expert:  Samuel II replied 1 year ago.

I wish it was a more simpler answer for you.

Customer: replied 1 year ago.
I have not been served or anything and just don't understand how this can still be an issue 2 and half years later. It's a serious offense for them to just drag there feet
Customer: replied 1 year ago.
After I contacted the detective 5 months ago he didn't say anything about charges just that it's still being investigated and gave me a run around if there had been a warrant shouldn't he told me to turn my self in. And I was booked and released on O R recently and they didn't hold me. Soo the warrant isn't active
Expert:  Samuel II replied 1 year ago.

Ok. What is the exact charge you were being questioned for, please?

Expert:  Samuel II replied 1 year ago.

And this allegedly happened in Montana?

Expert:  Samuel II replied 1 year ago.

Is it this?

45-5-503. Sexual intercourse without consent. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent. A person may not be convicted under this section based on the age of the person's spouse, as provided in 45-5-501(1)(a)(ii)(D).
(2) A person convicted of sexual intercourse without consent shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219, 46-18-222, and subsections (3) and (4) of this section.
(3) (a) If the victim is less than 16 years old and the offender is 4 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual intercourse without consent, the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 4 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.
(b) If two or more persons are convicted of sexual intercourse without consent with the same victim in an incident in which each offender was present at the location where another offender's offense occurred during a time period in which each offender could have reasonably known of the other's offense, each offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 5 years or more than 100 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.
(c) If the offender was previously convicted of an offense under this section or of an offense under the laws of another state or of the United States that if committed in this state would be an offense under this section and if the offender inflicted serious bodily injury upon a person in the course of committing each offense, the offender shall be:
(i) punished by death as provided in 46-18-301 through 46-18-310, unless the offender is less than 18 years of age at the time of the commission of the offense; or
(ii) punished as provided in 46-18-219.
(4) (a) If the victim was 12 years of age or younger and the offender was 18 years of age or older at the time of the offense, the offender:
(i) shall be punished by imprisonment in a state prison for a term of 100 years. The court may not suspend execution or defer imposition of the first 25 years of a sentence of imprisonment imposed under this subsection (4)(a)(i) except as provided in 46-18-222, and during the first 25 years of imprisonment, the offender is not eligible for parole.
(ii) may be fined an amount not to exceed $50,000; and
(iii) shall be ordered to enroll in and successfully complete the educational phase and the cognitive and behavioral phase of a sexual offender treatment program provided or approved by the department of corrections.
(b) If the offender is released after the mandatory minimum period of imprisonment, the offender is subject to supervision by the department of corrections for the remainder of the offender's life and shall participate in the program for continuous, satellite-based monitoring provided for in 46-23-1010.
(5) In addition to any sentence imposed under subsection (2) or (3), after determining the financial resources and future ability of the offender to pay restitution as required by 46-18-242, the court shall require the offender, if able, to pay the victim's reasonable medical and counseling costs that result from the offense. The amount, method, and time of payment must be determined in the same manner as provided for in 46-18-244.
(6) As used in subsections (3) and (4), an act "in the course of committing sexual intercourse without consent" includes an attempt to commit the offense or flight after the attempt or commission.
(7) If as a result of sexual intercourse without consent a child is born, the offender who has been convicted of an offense under this section and who is the biological parent of the child resulting from the sexual intercourse without consent forfeits all parental and custodial rights to the child if the provisions of 46-1-401 have been followed.

Expert:  Samuel II replied 1 year ago.

How old was the "victim" ?

Expert:  Samuel II replied 1 year ago.

How old were you when they are alleging this happened?

Customer: replied 1 year ago.
Sex with out consent.. was the reason for questioning
Customer: replied 1 year ago.
she is 1 year older and I was 26
Expert:  Samuel II replied 1 year ago.

Ok. That is the code I provided above. And the Statute of Limitations to file is

Code Section 45-1-205; 45-1-206 Felonies Deliberate, mitigated, or negligent homicide: none; others: five (5) yrs.; sexual assault, sexual intercourse without consent, indecent exposure, deviate sexual conduct, incest, sexual or ritual abuse of child if victim is under 18 yrs. old at time of offense: within ten of victim turning 18 yrs. old -

Expert:  Samuel II replied 1 year ago.

But for your case, the Montana Code says

(2) Except as provided in subsection (7)(b) or as otherwise provided by law, prosecutions for other offenses are subject to the following periods of limitation:
(a) A prosecution for a felony must be commenced within 5 years after it is committed.

Expert:  Samuel II replied 1 year ago.

And so that is why I was wondering the age.

In any case, the upshot is this The Warrant is outstanding. And that means it is active.

Expert:  Samuel II replied 1 year ago.

I am getting a notification that you have replied again. But I do not see anything. Please let me know, if you have other questions, need more information or clarification. Thanking you in advance for a positive rating.

Expert:  Samuel II replied 1 year ago.

Thank you

Customer: replied 1 year ago.
I don't understand that after so long.. and nothing.. and like u said I have kept in contact with the detective that handle the situation and he hasn't stated that there is or was.. so I'll contact the court clerk my self to see if it is or why. And see if there are actually charges or not just doesn't make sense since I have had contact with law enforcement and never been arrested.. just seems fishy cuz the detective has my number and hasn't contacted me
Expert:  Samuel II replied 1 year ago.

Thank you. I understand it can be frustrating and the statute of limitations confusing. If they file within the SOL, then that is all that matters.

And yes, I suggest you check with the court clerk and ask about it.

Expert:  Samuel II replied 1 year ago.

And good luck with everything.

Customer: replied 1 year ago.
Thank you for your time
Expert:  Samuel II replied 1 year ago.

You're welcome.