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Can You Be Charged with a Crime Without Being Arrested?

There are a variety of ways in which you can be charged with a crime in Colorado, and an arrest is only one of them. 

Arrests

An arrest occurs when a person is taken into custody by law enforcement. You can be charged with a crime by being arrested, and this is what most people think of when they think of a person being charged with a crime. An arrest can happen with a warrant or without a warrant.

A warrant is a document issued by a judge or a magistrate giving police the authority to arrest someone and take them into custody. Warrants can be issued in Colorado when:

  • The police have probable cause that the person committed a crime
  • The person failed to appear at a scheduled criminal court appearance
  • The person failed to appear in court when subpoenaed
  • The person failed to appear for scheduled jury duty
  • The person did not respond to or pay a traffic ticket 
  • The person violated their probation
  • The person failed to pay their court-ordered child support

The police must submit a written affidavit explaining the need for the arrest warrant, and the judge decides if it should be issued.

In Colorado, there are two situations in which a person can be arrested without a warrant:

  • If the person commits a crime in front of the police officer
  • If the police officer has probable cause to believe a crime was committed even though they did not see it happen. This primarily occurs when a report is made sufficient to establish probable cause.  Examples include domestic violence allegations and allegations of child abuse.  In both examples, an officer does may not see the events occur but there are statements made, or evidence provided, that establish the basis for an arrest

There is an exception to this. Police cannot make a warrantless arrest in a person’s own home, unless there is an exigent circumstance, such as a police officer chasing a suspect who just committed a crime and they are trying to hide in their home. Another example is that there is a sufficient basis to believe evidence may be destroyed, such as flushing drugs down the toilet.  and they go into their own home to hide. A warrant is not required in these kinds of circumstances, but there must be significant and justifiable grounds which overcome the need for a warrant. 

Grand Jury Indictments

Crimes can also be charged through grand jury indictments. A grand jury is made up of 12 to 23 local citizens who hear evidence and arguments that a person should be charged with a crime. The grand jury must find there is probable cause for an indictment to be issued. A quorum of the jury needs to agree there is probable cause to charge the person with the crime. 

In a grand jury proceeding, only the prosecutor presents evidence and witnesses. There is no defense presented at all. It is completely one-sided, and there is not even a judge present. The accused has no right to appear. However, the jurors themselves have the right to ask questions and subpoena additional witnesses. The grand jury process is intended for investigation, to allow the prosecutors to gather evidence, question witnesses, and build a case against a person they believe to have committed a crime.

If the grand jury returns an indictment (or “true bill”), then the person is charged with a crime. The indictment can then be used to arrest the indicted individual. The indictment may be sealed and kept secret until the arrest has occurred.

Summons

A person can also be charged with a crime when the arresting officer presents them with a summons, directing them to appear in court at a specific date and time. This process is possible only if:

  • There is a reasonable belief that the person receiving the summons will actually appear
  • There is no allegation that the person being summoned used a deadly weapon as part of the crime
  • The person being summoned does not have any outstanding arrest warrants 
  • Given the Covid pandemic, summonses are preferred in some cases because of outbreaks in the jail as well as overcrowding.  This is an evolving situation and changes frequently.  However, non-violent offenses have a higher likelihood of a summons unless they involve allegations of domestic violence, the suspect has a significant criminal history, or there is a concern that they will not appear in court. 

Tickets

The issuance of a ticket (such as for a traffic infraction) is technically charging someone with a crime and is done without an arrest. Most traffic violations result in fines or a loss of your license. However, it is possible to be sentenced to jail time for certain offenses, such as driving over a certain speed., driving under restraint, or driving as a Habitual Offender. 

Any time you are charged with a crime or the police want to question you, you must have an attorney present to protect your rights. Burnham Law attorneys have years of criminal law experience and are ready to be your advocate any time the police want to talk to you. Call us now at 303-990-5308 or send us a request for an appointment. Your rights are important. Don’t wait to get the protection you need.

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Kayla
Wingard

Associate Attorney - Domestic Relations

Colorado Springs

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