Criminally Yours: Oops, You Got Arrested -- Now What?

This is likely what will happen to you if you've been arrested in New York, provided you're not black or Hispanic, not an illegal immigrant, and don't have a prior criminal record.

While I’m guessing it’s unusual for most people who read this column to ever get arrested, you never know — some day you might have kids, or join the wrong political demonstration, or just have a loud party and the neighbors will call the police.

So what’s likely to happen? I’m speaking of New York, as that’s my immediate bailiwick, but the process you’ll be subjected to runs pretty much the same course whether it’s any of the 50 states, provided you’re not black or Hispanic, not an illegal immigrant, and don’t have a prior criminal record.

Some crimes qualify for what’s called a “DAT” — a Desk Appearance Ticket. This is akin to a summons, although there is a separate “summons” part in New York City for even more menial crimes. A DAT, as opposed to a full-blown arrest, is issued if the crime is low-level enough to merit it. Some examples include smoking marijuana in public, petit larceny (shoplifting under a certain amount), or jumping a turnstile. In order to get a DAT, you also must live in New York (some exceptions are made for New Jersey and Connecticut) and have no criminal history. The DAT compels you to come back to court on a particular date and be arraigned on your charges.

On any given day, there’s a huge number of DATs, so when you show up in court, you’ll be one of dozens and dozens of people just sitting in the audience waiting for your case to be called.

The way to jump the line is to hire your own attorney before the court date. While that attorney (at least in New York) won’t be able to get anything done in advance because no prosecutor is even assigned your case until you show up, at least he or she can get your case called speedily and get out the door before lunch. Everyone else gets a public defender, which is fine, but the conversation with them will be briefer, speedier, and with a lot less hand-holding. It will also take a heck of a lot longer to see the judge.

Most DAT cases are “disposed of” at arraignments. This means the prosecutor, in the “interest of justice” (or in the interest of just saving time), makes you an offer you can’t refuse. The most common offer for first-time offenders (i.e., people with no criminal histories) is an “A.C.D.” — an Adjournment in Contemplation of Dismissal. This means the prosecutor is agreeing to let your case be dismissed (probably because they realize what a waste of taxpayer money it was to arrest you in the first place), but only six months from the date you “accept” the ACD will your case disappear. Technically, should you pick up another arrest in that six-month period, the case could be revived.

If you complete the six-month period without problem, your case is automatically dismissed and “sealed” without you coming back to court. Once “sealed,” it should never come back to haunt you again. Your prints and mug shots should be destroyed and no trace of any prior arrest ever found. I say “should,” because I’ve found there can be ghosts in the machine — glitches in the system where ACDs, or the fingerprints associated with them, show up down the road, but this is rare. The good news is, there are no court fees as there are with pleading to even “violations,” and it clearly is the most expeditious way to get rid of your case. Warning: if you don’t take that ACD on the first day out, you may not be seeing it again for a long time, if ever. Prosecutors get pissed off when defendants don’t appreciate the bounty of their ACD offer. Once they have to continue with the prosecution of the case — actually speak to a police officer at length, respond to defense motions, or get ready for hearings and trial — they get pissed off. Your next offer will likely be a plea to a “violation” and not an adjourned dismissal.

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It helps to hire an attorney in advance. While they can’t contact any individual prosecutor before the DAT date, at least they’ll tell you what information you should bring (your school transcript, any specialty licenses or certifications, etc.) and have a conversation with the prosecutor in the court part before the case is called.

As for attorney fees, based on an anecdotal survey of my colleagues, the going rate to hire a defense attorney for a DAT starts at $1,500. You might find somebody cheaper in certain boroughs if they happen to be hanging around the courtroom, but then again, you might find someone who will promise you the moon for $3,500. As I said, they can’t get the case dismissed before you go to court since no prosecutor has even been assigned before that day, so beware. Use your judgment. And, yes, you must go to court in person. You can’t just phone it in (unless, I suppose, you’re a foreign dignitary or related to Cy Vance).

You can, however, get the date changed if there’s a real problem, but think about it like it’s the DMV — it will be a lot of hassle, and not worth the trouble for you or a lawyer unless there’s really no other choice.


Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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