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Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 584
Experience:  Attorney at Law Offices of Khaled Issa
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If I got arrested 11 months ago for a gun and never was

Customer Question

if I got arrested 11 months ago for a gun and never was taken before a judge and brought back 11 months after for the same charge to be arraigned for it due to they wanted to do a further investigation and they claimed that the case was never filed but I went to jail for it , I admitted to the gun 11 months ago on the scene and the only thing they said they found out of there investigation was that they realized I admitted to the gun on the scene. I believed that my due process rights were violated . was it?
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Legal-Kal replied 11 months ago.

Good evening:

My name is ***** ***** I would be happy to provide general information regarding your question.

In what state did this occur?

Customer: replied 11 months ago.
Expert:  Legal-Kal replied 11 months ago.

Alright. Also, when you say you were in "jail," I'm assuming that you meant local police department jail (i.e., holding) and were released within 72 hours?

Customer: replied 11 months ago.
I was in jail for 5 days
Customer: replied 11 months ago.
county jail
Expert:  Legal-Kal replied 11 months ago.

Ok, I think I have the information needed to provide you a response. Please give me a few minutes to type out a thorough response. Thanks!

Customer: replied 11 months ago.
Expert:  Legal-Kal replied 11 months ago.

So to begin with, just because there may be an admission or confession of a crime, police will always continue to investigate to attempt to find evidence that corroborates the admission. This is because, under law, an admission and an admission alone will not be enough for prosecutors to sustain their burden of proving the defendant guilty beyond a reasonable doubt. For instance, in gun possession cases, police will always attempt to find a gun and submit it to their labs for printing and further analysis. This is because if the only evidence prosecutors have regarding a gun charge is a defendant's admission, a defense attorney can try to formulate arguments that either the police are lying about the crime (because no gun was ever found) or that the admission made by a defendant is inadmissible (for any number of reasons) and, without that admission, the DA cannot prove their case. This is why police will always continue to investigate for further evidence, even if there was an admission or confession.

What that means is that police do not have to charge a defendant right away. In fact, the law regarding when charges must be filed by allows police to continue further investigation. This law is called the Statute of Limitations and holds that if charges are not brought within a certain time, charges can't ever be brought for the offense. Depending on the exact nature, a gun possession statute of limitations ranges between 3 and 5 years.

So, just because an admission/confession was made does not mean that charges are (or will be) brought immediately.

Before I proceed with your question regarding due process and being held, I want to pause here and allow you to ask any questions you have on what I've provided thus far.

Customer: replied 11 months ago.
What about I was took to jail for five days and never taken before a magistrate to say rather they was going to file or not file any charges for a further investigation , and in the latest police report they said that no charges was filed at the time due to they wanted to conduct a further investigation , so why was I taken to jail ? or why didn't I come before a magistrate ? I believe that the law say that " there is no authority to delay an arraignment for the purpose of an investigation . Am I right?
Expert:  Legal-Kal replied 11 months ago.

That is the next part I wanted to discuss.

As you seem to already know, Penal Code 825(2) requires that an individual in custody must be brought before a judge "without unnecessary delay" and, in any event, within 48 hours (excluding holidays/weekends). So, unless you were booked on a Thursday and Friday and the following Monday were Court holidays, then a civil right violation may indeed have occurred. (Obviously the dates and timeline would be the determining factors and these types of cases are fact intensive). But this is a law that applies without regard to where police are in their investigation (meaning the law cannot be ignored simply because police want to continue their investigation)

So, assuming that a deprivation of rights has occurred, the proper remedy would be filing what is called a 1983 action. A 1983 action is a federal lawsuit under 42 U.S.C. 1983. This is the federal law that allows private citizens to sue (and if successful, obtain a remedy) for actions on the part of local, state or federal law enforcement leading to a deprivation of rights.

For your reference, here is a link to the law itself:

1983 claims are complicated because they essentially contain: 1) state criminal law/procedure, 2) federal civil rights laws and 3) federal civil procedure rules.

Questions on this so far?

Expert:  Legal-Kal replied 11 months ago.

Also, for your review, is section 825 here:

You'll have to scroll down to 825, but, as you can, the time line and chronology of the time of arrest and whether court is/was in session are important factors.

Expert:  Legal-Kal replied 11 months ago.

Questions based on this? If so, please ask!

If not, please remember that experts here are not employees of JustAnswer and do not get credited for taking the time to provide general information to individuals until the individual clicks ACCEPT and rates the assistance with three stars or higher. Your cooperation in this regard would be appreciated!

***General information provided here is for educational and informational purposes only and does not constitute legal advice, nor should it be relied upon as such. It is always wise to consult with an attorney licensed in your jurisdiction as they would be in the best position to assist***

Customer: replied 11 months ago.
I was arrested without a warrant therefore I was suppose to to be brought to a magistrate without any unnecessary delay correct? my question is was I suppose to be brought before a judge when I was taken to jail the first time for the gun? weather they wanted to do a further investigation or not ?
Expert:  Legal-Kal replied 11 months ago.

A person must be either: brought before a judge within that time frame or released. Police cannot hold an individual for more than the prescribed time frame without bringing the person before a judge. This is the case regardless of whether or not police want to further investigate.

What the police want to do regarding their investigation does not change the fact that a person must be brought before a judge within the legal time frame. So, yes, you were indeed supposed to be brought before a judge when taken to jail the first time.

Customer: replied 11 months ago.
do I have a law suit?
Expert:  Legal-Kal replied 11 months ago.

Again, it all depends on the chronology and so much more information that is impossible to obtain in this forum. Only an attorney that you retain can fully investigate whether or not you have a solid claim. The attorney would have to issue subpoenas and request to the agency that took you into custody in order to obtain all the documents related to your arrest and subsequent detention.

As mentioned before, these types of cases are so fact intensive, only a full and complete review of ALL the documents involved in the case along interviews of you and law enforcement conducted by your attorney will determine whether or not there is a likelihood of success in a lawsuit.

The good thing is that many personal injury/civil rights attorneys work on contingency fee basis (meaning that do not recoup any fees or expenses unless and until they win the case and recover any settlement or other damages against the law enforcement agency on your behalf.

Expert:  Legal-Kal replied 11 months ago.

I see you have read my response.

If you have no other questions, be advised that experts here assist individuals as their income and not as a hobby and on a good-faith basis with the individual asking the question. With this in mind, please remember to click ACCEPT and rate the assistance with three stars or higher as this is the only way experts can be credited for taking the time to assist, in compliance with the terms of service agreed upon by you and the good faith effort put forth by the experts, which will ensure future assistance.

Expert:  Legal-Kal replied 11 months ago.

Please remember to click accept and rate the assistance provided as that is the only way experts can be credited.