By Samuel Strom, J.D. | Legally reviewed by Rhonda Earhart, Esq. | Last reviewed October 17, 2023
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Getting arrested can be an extraordinarily stressful experience, both for you and your loved ones. There's a lot to think about during this time. It's important to understand:
These concerns only get magnified the longer law enforcement officers hold you in custody. But knowing more about the arrest process and your rights can make an arrest by police officers slightly less stressful.
So, how long can you be held without charges? There are limits based on the Constitution and federal and state laws. Read on to learn how these limits might apply to you.
Suppose law enforcement has enough evidence to believe a person committed a crime. At that point, law enforcement has probable cause to arrest them. If a law enforcement officer saw this person commit a crime, they can arrest them immediately. Alternatively, because they have probable cause, they may request a judge to issue an arrest warrant.
Whether law enforcement arrests the suspect for a misdemeanor or a more serious crime, like a felony, the arresting officer will book the arrestee. This involves taking the suspect into custody and entering information into the police station's system.
Before law enforcement begins questioning the suspect, they must inform the suspect of their constitutional rights. This typically involves reading the suspect their Miranda rights.
Soon after law enforcement arrests a suspect, the court will set a court date for the suspect's arraignment. An arraignment is typically the suspect's initial appearance in court.
At an arraignment, the suspect appears before a judge. There, the judge informs the defendant of the following:
If the judge finds that the defendant will likely return to court, they may release them on their own recognizance. This is usually the case for misdemeanor charges. For more serious charges, such as felonies, the defendant may have to post bail for release. If the judge determines that the defendant may not return to court willingly, they may order them to remain in jail until their trial.
The Sixth Amendment to the U.S. Constitution guarantees the right to a speedy trial for criminal defendants. A “speedy trial" is one that takes place within a time period set by law. It must occur without unreasonable or undue delay.
A defendant must be "tried" for their alleged crimes within a reasonable time after arrest by law enforcement. Being tried means the prosecutor reviews the crime and its details and decides if they want to pursue a criminal case. The case could go to trial. Alternatively, the prosecution may drop the case. Moreover, the case may be resolved via a plea agreement. Often, this involves a guilty plea. The trial judge must approve and accept the plea agreement.
Although the state cannot hold arrestees without formal charges for an unreasonable amount of time, the Constitution does not specify what that period of time is. Because the Constitution does not set these limits, states typically set them. Thus, these limits vary on a state-by-state basis.
Generally, if law enforcement places you in custody, your "speedy trial" rights typically require the prosecutor to decide charges within 72 hours. Many states adhere to this 72-hour limit.
Sometimes, the state does not file charges. In such instances, the state will release the arrestee. Nothing will be on their criminal record, but they will have an arrest record.
How long the state can hold you without charges depends on a few factors. The U.S. Supreme Court has established protections for criminal defendants. These protections keep you from being forced to serve lengthy jail times before a conviction.
Speedy trial rights also lessen the time the accused must endure the anxiety and publicity of an impending trial. Furthermore, these limits minimize the damage that a delay might cause to the person's ability to present a defense.
If you are arrested, a prosecutor will review your case before deciding what charges they will file. The initial charging decision does not bind a prosecutor. They may change the charged crimes after obtaining more evidence.
If the prosecutor fails to charge you within the time limit, the police must let you go. Failing to release you in such a situation may violate your rights.
If you are detained but not booked within a reasonable time, your attorney may go to a judge and obtain a writ of habeas corpus. A writ of habeas corpus is a court order which instructs law enforcement to bring you before the court. There, a judge may decide whether the state is lawfully holding you.
Timing is essential in criminal law. Your freedom is the highest priority. This is especially true when you are arrested—arrests can trigger strict law enforcement requirements.
If you are still unsure about how long the police may hold you without charges, talking with a criminal defense lawyer may help. An experienced criminal defense attorney can provide you with critical legal advice regarding the following:
If you are involved in a criminal case, consider contacting a criminal defense attorney near you.
Contact a qualified criminal lawyer to make sure your rights are protected.
Get tailored advice and ask your legal questions. Many attorneys offer free consultations.