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My 23 year old son was involved in an altercation two weeks

ago. He did not start...
My 23 year old son was involved in an altercation two weeks ago. He did not start the fight and was out numbered in this situation. He did not take the first swing but did end up on top the attacker. The police arrived, hand cuffed him and put him in the cruiser. Th officer told him to calm down and they knew of these other guys as they are always getting in trouble in town. They told Jon to calm down, and when the other party was let go he would be allowed to leave. That in fact was the case, they him go. Five days later my son received a call from one of the officers asking him to come down to the station to pick up a summons to appear in court for dis-orderly conduct. He asked for a copy of the police report and was told that because he was arreasted he has to go through (discovery) to get said report. He was never given miranda rights. What is wrong with this story. I can't get my arms around this whole scenario.
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Answered in 22 minutes by:
12/2/2010
RobertJDFL
RobertJDFL, Lawyer
Category: Criminal Law
Satisfied Customers: 14,189
Experience: Experienced in multiple areas of the law.
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Good afternoon, thank you for your question.

Unfortunately, the state can still charge a person based on information in a police report. And, the police do get things wrong from time to time. In this situation, if the police pull up to the scene, and see your son on top of the other person, the presumption is that he was the aggressor. Regardless of whether the other people are known trouble makers, that doesn't mean your son couldn't have attacked one of them. The police simply don't know. Here is the statutory definition of disorderly conduct in New Hampshire:

A person is guilty of disorderly conduct if:
I. He knowingly or purposely creates a condition which is hazardous to himself or another in a public place by any action which serves no legitimate purpose; or
II. He or she:
(a) Engages in fighting or in violent, tumultuous or threatening behavior in a public place; or
(b) Directs at another person in a public place obscene, derisive, or offensive words which are likely to provoke a violent reaction on the part of an ordinary person; or
(c) Obstructs vehicular or pedestrian traffic on any public street or sidewalk or the entrance to any public building; or
(d) Engages in conduct in a public place which substantially interferes with a criminal investigation, a firefighting operation to which RSA 154:17 is applicable, the provision of emergency medical treatment, or the provision of other emergency services when traffic or pedestrian management is required; or
(e) Knowingly refuses to comply with a lawful order of a peace officer to move from or remain away from any public place; or
III. He purposely causes a breach of the peace, public inconvenience, annoyance or alarm, or recklessly creates a risk thereof, by:
(a) Making loud or unreasonable noises in a public place, or making loud or unreasonable noises in a private place which can be heard in a public place or other private places, which noises would disturb a person of average sensibilities; or
(b) Disrupting the orderly conduct of business in any public or governmental facility; or
(c) Disrupting any lawful assembly or meeting of persons without lawful authority.
III-a. When noise under subparagraph III(a) is emanating from a vehicle's sound system or any portable sound system located within a vehicle, a law enforcement officer shall be considered a person of average sensibilities for purposes of determining whether the volume of such noise constitutes a breach of the peace, public inconvenience, annoyance, or alarm, and the officer may take enforcement action to abate such noise upon detecting the noise, or upon receiving a complaint from another person.

There is no requirement that police read a person their Miranda rights when arrested unless the police intend to question a person while they are in custody.

It seems like he was charged with a violation, which is lower than a misdemeanor. While a criminal act, he cannot go to jail if convicted of a violation, and would likely pay a fine. However, this would leave a record of the conviction and court proceedings which he could then not legally get annulled for at least one year under New Hampshire law.

For this reason, he may wish to consult with a criminal defense lawyer regarding this matter (many offer low cost or free initial consultations so he can ask questions and get a better idea of what he is facing). He could argue that his actions were made in self-defense, and that he was not the aggressor, and therefore could not be guilty of the crime. But, he would also likely need to find witnesses who could verify what happened in order to prove his defense.


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RobertJDFL
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