Step #1 In A Criminal Case – The Arraignment Process

The first step in a criminal case is generally the arraignment which is the first court date.

For felony matters, you may have two arraignments–one before your preliminary hearing and one after its completion if you are held to answer on the charge.

What Is The Purpose Of The Arraignment?

The main function of the arraignment is for you to enter a plea after hearing or learning of the charges that have been filed.

When Is The Arraignment?

The arraignment depends on whether you are in custody or are out of custody.  

If you are in custody then you must be arraigned within 48 hours.

Weekends and holiday hours do not count toward the 48-hour period.

If you are out of custody the district attorney has until the statute of limitations runs out to file charges and set an arraignment date.

What Happens At Arraignment?

At an arraignment the following happens:

• Defendant enters a plea.
• Bail is set if necessary.
• Defendant may request a public defender.
• Defendant may request a continuance to acquire private counsel.

Before entering a plea, the court may read the charges that have been brought against you.

In the majority of cases, the defendant’s attorney will waive the reading of the complaint or charges before entering a plea.

You will also be advised of your constitutional rights regarding:

• Right to a fair trial
• Right to a speedy trial¹ enforced with a Serna motion
• Right to subpoenaing and cross-examining witnesses¹
• Right against self-incrimination
• Rigth to be represented by an attorney and if you cant afford one a public defender will be made available to represent you².

What Happens After The Charges Are Read Or Waived?

After the charges are read or the reading of them are waived, you will be asked to enter a plea.

Your Plea Options Include:

• Guilty
• Not guilty
• Nolo contendre
• Ask for a continuance
• Request a deferred entry of judgment or diversion

What Happens If You Plead Not Guilty?

A plea of not guilty will bring you to the next phase, which may be a pre-trial conference for misdemeanor cases and a preliminary hearing if a felony.

Your attorney can receive any evidence against you and begin to review that evidence.

What Happens If You Plead Guilty or Nolo Contendre?

Should you plead guilty, the court may either sentence you the same day if the charge is relatively minor or refer you to probation where a probation officer may question you about the offense, your reasons for committing the crime and your personal circumstances.

The report will be given to the court at a later sentencing hearing.

What is A Nolo Contendre Plea?

A nolo contendre plea is the same as a guilty plea and the court will accept it as such. Its effect is for civil purposes.

For example, if someone who was injured in an assault by you brings a civil suit for damages, your plea may not be used as evidence against you.

Are You Required To Appear At Arraignment?

You do not have to appear at the arraignment if you have an attorney appear on your behalf and the charge is a misdemeanor.

Exceptions where you have to appear in misdemeanor cases include:

• Domestic violence under PC 273.5 
• Violating a protective order 
• forgery
• Aggravated DUI .

If the charge is a felony than the defendant will usually be required to appear. The judge may accept a written waiver request from your attorney but in most cases will require the presence of the defendant in a felony case.

What Happens If You Fail To Appear For Arraignment?

In a misdemeanor case, your failure to appear or to have an attorney appear on your behalf is a misdemeanor. If you charge is a felony, your failure to appear is a felony offense³.

Watch this video for an indepth explanation of what happens if you fail to appear in court.

The court will issue a bench warrant for your arrest in either case. In some cases where your appearance is mandatory, you may submit a waiver of your obligation to appear but the court must agree to accept your excuse.

An example of when such a waiver may be submitted is if you live out of state or out of the country.

Can You Challenge Probable Cause At Arraignment?

In some misdemeanor cases, your attorney can ask for a probable cause hearing if there are serious questions as to whether you were lawfully arrested. The court will generally hold the hearing at the arraignment.

Posting Bail And Conditions For Release At Arraignment

What Happens If You Are Still In Custody For Your Arraignment?

In some cases following an arrest, your attorney can inquire of the prosecuting attorney if bail has been set if you are still in custody.

The county where you were arrested should have a bail schedule listing the various amounts of bail set for each type of offense. Bail is cash or a bond that a court orders to assure your appearance at all future court appearances.

What Happens If Bail Is Not Set Prior To Arraignment?

If bail has not been set, then the court will either impose it at the arraignment or order you released OR.

Most first-time offenders are released OR in misdemeanor cases unless it is a domestic violence matter. If you are in custody, you must have a bail hearing within 5 days of the date the court set your bail.

What Is A Bail Hearing?

A bail hearing is an opportunity for you or your attorney to have your bail reduced or eliminated by having you released OR⁴ or on your own recognizance. You do face the risk that the prosecution could ask the court to increase your bail, especially if you violated probation or parole.

For this reason, it may be advisable to post a bond as soon as bail is set so that you have a better chance of remaining free before the court can place a “hold” on your release.

Factors that a court will consider in setting or reducing bail include:

• Severity of the crime–was someone injured, were weapons or drugs involved
• Prior criminal convictions
• Risk to public safety⁵
• Involvement in the community–employment, family, property or business owner
• Likelihood you will appear for all future appearances

Can Bail Be Lowered If You Are Charged With A Felony?

If you are charged with a serious felony, however, the court will not lower your bail below the scheduled amount unless you can demonstrate changed circumstances supported by new evidence.

If you are released OR or the court has reduced your bail, the court may issue conditions as well.

These may be:

• Surrendering passport
• Surrendering driver’s license
• Entering a treatment facility
• Wearing electronic monitoring device
• Being placed under house arrest with electronic monitoring
• Avoiding contact with victim
• Maintaining or be actively seeking employment
• Imposition of a curfew
• Refraining from drugs or alcohol
• No drinking and driving
• Regularly reporting to police

What Would Cause You To Lose Your Bail?

Failure to abide by conditions can result in forfeiture of the bond. Should you not appear in court, the judge can order that you forfeit property that you pledged. Your assets may also be ordered frozen.

Asking For A Continuance To Find Counsel At Arraignment

If you appear in court without an attorney, the court will ask you if you have an attorney, whether you will be retaining one or if you wish to qualify for a public defender.

If the latter, the court will ask you questions about your employment, if any, and your financial situation to see if you qualify.

Usually, the court will determine your eligibility after a few questions.

Can You Continue Arraignment To Find A Private Attorney?

If you wish to retain private counsel, you can ask the court to continue the arraignment so you can locate and retain an attorney. Most continuances are for one week though you may request and be granted an additional week.

By asking for a continuance, the court will ask you to “waive time” or the right to be arraigned within a certain time.

Important Criminal Defense Information

Additional Information On Criminal Proceedings:

• The Preliminary Hearing (Felonies)
• How You Should Conduct Yourself In Court
• Criminal Trials: A Step by Step Overview
• Understanding The Probation Process
• Important Reasons To Hire An Attorney When Charged With A Crime

1. California Penal Code 686 [↩] [↩]
2. California Penal Code 858 [↩]
3. California Penal Code 1320 [↩]
4. California Penal Code 1270 [↩]
5. California Penal Code 1275(a)(1) –  In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety shall be the primary consideration. In setting bail, a judge or magistrate may consider factors such as the information included in a report prepared in accordance with Section 1318.1. [↩]