One of the first questions most people ask after they have been arrested is how quickly they can get out of jail. West Virginia, like other states, requires that an arrested person be presented to a judicial official shortly after arrest.
(See Arraignment: Getting to Court for a general overview of the procedure after arrest.)
Without Unnecessary Delay
When a police officer arrests someone in West Virginia, whether or not pursuant to a warrant, he or she must present the individual to a magistrate without unnecessary delay. (The initial appearance may, in some instances, occur via video conference.) If the arrest wasn’t pursuant to a warrant, a complaint establishing probable cause for the arrest must immediately be filed.
The law doesn’t specify a time limit for this initial appearance. Before taking the arrestee to court, officers may complete routine investigative work, and even take a statement if the arrested person is willing. (State v. Johnson,219 W.Va. 697 (2006).)
If police officers violate the unnecessary delay rule, any statements or confessions they obtained may be inadmissible. (State v. Gray, 217 W.Va. 591 (2005).) For example, in one case a defendant was held in jail for 15 hours before going before a magistrate, and the police admitted the delay was intended to procure a confession from him. (State v. DeWeese, 213 W.Va. 339 (2003).)
At the initial appearance, the magistrate must inform the arrestee of certain information, including:
- the right to counsel
- the right to not make any statements
- the right to a jury trial
- the right to a preliminary hearing (if applicable), and
- the charges.
Depending on the charges, the magistrate may take a plea at the initial appearance. (See How should I plead at arraignment?)
Getting out of Jail
Whether the charges are misdemeanors or felonies, the magistrate determines bail at the initial appearance. But defendants can later seek modification of the bail amount and conditions. When a defendant files a motion to modify bail, the court must hear it within five days.
Talk to a Lawyer
If you’ve been arrested for a crime, consult a criminal defense attorney in your area as soon as possible. An experienced lawyer can fully advise you of the applicable law, numerous procedural issues, and defenses.