The circumstances surrounding most situations in which an individual is taken into custody typically do not provide either the time or opportunity for police or law enforcement officers to obtain an arrest warrant. Therefore, attorneys might not be familiar with the proper advice to give to clients who have outstanding arrest warrants pending against them.
Finding out about outstanding warrants
Advising clients with outstanding arrest warrants can be made difficult by the lack of information the person consulting an attorney might have about the warrant, including:
- The name and location of the court issuing the warrant
- The reason for the warrant being issued
- The criminal charges upon which the warrant issued
Finding out if an arrest warrant has been issued can usually be accomplished by a telephone call to the police or sheriff's office in the county or city in which the warrant might have been issued. Online searches for outstanding warrants can also be performed.
How warrants work
An arrest warrant is issued by a judge at the request of state or federal law enforcement officers or prosecutors. The judge must be satisfied that evidence supports the belief that the individual named in the warrant committed a specified crime for which formal charges have been filed.
Bench warrants may be issued in criminal or civil cases authorizing the arrest of an individual for failing to appear to answer to criminal charges or to a civil subpoena. Judges issuing bench warrants might specify the amount of bail that must posted before the arrested person can be released
Advising a client to surrender
Advising a client to surrender to local police or to the court could result in the person being held in jail unless accompanied by an attorney. Defense attorneys can present arguments to convince a judge that the individual is not a flight risk or that the underlying criminal charges do not support the client's arrest.
This could persuade a judge to set minimal bail or to release the person on his or her own recognizance without bail. It might also be possible for attorneys to make arrangements for the surrender and release of a client in advance.
Arrest warrants from other states
Police who become aware of an arrest warrant from another state can take the individual into custody as a fugitive. The state that issued the warrant can request the extradition or return of the person to answer the criminal charges. An attorney can challenge extradition through in a hearing in the state in which the arrest was made.
Federal arrest warrants
Arrest warrants issued by federal judges authorize law enforcement agencies to take the person into custody anywhere in the United States. The federal government has treaties with a number of other nations allowing for the detention of a U.S. citizen living in another country for extradition back to this country to answer criminal charges.
An American citizen has the right to challenge international extradition. Unfortunately, the extradition laws of the foreign country would apply in any hearing challenging the return of the person to the U.S. Attorneys advising Americans in other countries must be familiar with the local laws that will apply.