Cops have extraordinary power to arrest us without warrants and charge us with an array of offenses, which is a huge reason why restraining them is absolutely critical to freedom.

A common abusive practice is overcharging people who are arrested. Two common ways to overcharge: 1) choosing the highest level offense imaginable, rather than the one which most accurately fits the facts; and 2) “Piling on”, which is what I call the practice of taking the same scenario and charging it several different ways, even if it really doesn’t fit the facts, or even if the charges are not consistent.

Overcharging is devastating for numerous reasons. It determines how the jail initially treats the accused, the pre-trial supervision of the accused, conditions of bail, how much the accused has to post for bail, how media may publicize the event, and how the prosecutor initially views the accused.

The accused’s criminal record also retains the charges, even if the charges are all later dismissed. The accused must go through an expensive process to fix this problem, and he may have to wait for years for the opportunity to start fixing it.

Higher bail usually means the accused must pay a “bail bondsman”, or surety, much more money to secure release from jail. The money paid to the surety can be many THOUSANDS of dollars, and it is NOT refunded, even if the case is completely dismissed.

Allow me to offer an example of overcharging.

A cop sees a car slowly weaving down the road at 2:30 a.m.. The cop turns on emergency lights to pull over the car. Instead of immediately pulling over, the driver continues a hundred yards down the road, then gradually parks partially on the shoulder, yet not completely out of the traffic lane.

Upon contacting the driver, it is immediately obvious to the officer the driver is extremely intoxicated, even to the point the driver vomits, moves very slowly, is extremely disoriented, and can barely stay awake. The driver is physically incapable of hurting the cop. Surely, the driver should be arrested for Driving While Intoxicated, which is usually a misdemeanor.

However, when the officer tells the driver to turn around because he is under arrest for DWI, the driver is reluctant and slow about obeying, even calling the cop a vulgar, offensive name. The cop reaches for the driver’s wrist, so as to turn around the driver to be handcuffed, and the driver groggily pushes away the cop’s hand, mumbling “you’re gonna pay for this.” The cop proceeds to arrest the driver and takes him to jail.

So, what do you expect to be charged?

DWI? That’s obvious. A traffic ticket? Probably not, since it’s usually not done, but it might happen. Resisting arrest? Maybe, but that’s a stretch.

What you might not expect are some other charges, including multiple felonies. Felony Evading Arrest in a Motor Vehicle is charged for not immediately pulling over when signaled. Aggravated Assault on a Peace Officer for pushing away cop’s hand. Retaliation for saying, “you’re gonna pay for this.” Just for good measure, the cop charges more misdemeanors: Resisting Arrest and Obstructing a Highway (since the car wasn’t parked completely on the shoulder).

If the cop charges the driver with a misdemeanor DWI, it would likely lead to the driver’s release after a few hours for a few hundred dollars bail. He still faces the prospect of attorney fees, losing his driver’s license, fines, court costs, increased insurance cost, so he’s not happy. In the meantime, he goes back to home to his family, goes back to work, and tries to get the money together to deal with the mess.

If the cop charges the other offenses, the driver may sober up the a terrifying reality. Bail for the charges are as follows: 1) $25,000 for assaulting a cop; 2) $25,000 for evading arrest in a car; 3) $20,000 for retaliation “threats”; 4) $1,000 for resisting; 5) $500 for DWI; and 6) $500 for obstructing a highway. Now, the driver’s required bail to be released is $72,000. If the driver doesn’t happen to have $72,000 in cash, he has to hire a surety. To pay a surety, he may have to find a way to get $10,000 CASH. This is money he’ll NEVER recover, and he still has yet to pay the price for his offense.

Even if the prosecutor dismisses every felony charge a few weeks later, the $10,000 is gone forever. The driver still has multiple felony arrests on his record, and it may be several years before he has the right to file a lawsuit, at the cost of thousands of dollars more, to get them off his record.

The driver could be even more abused, in the event the prosecutor chooses to prosecute the ridiculous felony charges. Why would a prosecutor do such a thing? Easy… When a defendant has very serious charges against him, offering to dismiss those charges is valuable in plea bargaining.

Police should not be able to decide solely on their own opinions, what charges should be leveled. A trained magistrate should review what occurred before an official charge is filed. We cannot allow unfettered abuse to continue.


About Phillip W. Goff

I'm Phillip Goff, and I've been an attorney for over 20 years in South Texas. I'm passionate and dedicated to serving client's interests and promoting freedom.
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