## Your rights when arrested in West Virginia If you're arrested, your federal constitutional rights protect you — but how those rights work in practice depends on what you do (and don't do) at the moment of arrest. ### Phone call rule in West Virginia Reasonable phone access. ## The four rights that matter most **1. Right to remain silent (5th Amendment).** - You have NO obligation to answer ANY questions about the alleged offense - "Anything you say CAN and WILL be used against you" — believe it - Refusing to talk cannot be used as evidence of guilt - Best practice: Say clearly: "I am invoking my right to remain silent. I want a lawyer." - Then STOP talking — even friendly chatter can be used against you **2. Right to an attorney (6th Amendment).** - Once you ask for one, ALL questioning must stop - Police can't ask you anything substantive without your lawyer present - If you can't afford one, the court will appoint one (public defender) - Do NOT "waive" the right just to clear things up — never works in your favor **3. Right against unreasonable search (4th Amendment).** - Police generally need probable cause + warrant for searches - Major exceptions: search incident to lawful arrest, plain view, exigent circumstances, vehicle searches, consent - You can REFUSE consent to search your home or your person without warrant - Exception: After arrest, search of person + immediate area is automatic **4. Right to know charges + be presented to a magistrate (5th + 6th Amendments).** - Most states require initial appearance within 24-72 hours - Federal: "prompt presentment" rule (county v. Riverside) generally requires within 48 hours - Bail / release decision happens at this initial appearance ## Miranda — what it means and doesn't mean **Miranda v. Arizona (1966)** requires police to advise you of: - Right to remain silent - That anything said can be used against you - Right to attorney - Right to appointed attorney if you can't afford one Miranda is required ONLY for **custodial interrogation** — when you're (a) in custody AND (b) being interrogated. **What Miranda does NOT do:** - Doesn't apply to spontaneous statements you make voluntarily - Doesn't apply to public-safety exceptions - Doesn't apply when you're not yet in custody ("investigative detention" is gray) - Doesn't apply to physical evidence — only statements - Doesn't bar arrest itself — only excludes statements obtained without warning ## What to do during arrest 1. **Don't run** — most states' "resisting arrest" statutes are broad 2. **Don't fight** — even if the arrest is illegal, fight it in court 3. **Comply with physical commands** — show your hands, lie down, allow handcuffing 4. **State your name when asked** — required in most states ("Stop and identify" laws) 5. **Don't answer questions about the alleged offense** — even simple ones 6. **Ask if you're free to leave** — if not, you're in custody 7. **Invoke your rights clearly**: "Am I free to leave? I want a lawyer. I am invoking my right to remain silent." 8. **Don't argue** — courtesy doesn't help you, but rudeness can hurt 9. **Don't consent to searches** — even if police imply you must ## Search-related questions you'll get Common officer requests / questions and the right responses: - **"Can I look in your car?"** → "I do not consent to searches." (You don't have to consent. They may search anyway under exceptions, but your refusal preserves rights.) - **"Can I come in?"** → "I'd rather you didn't." / "I do not consent." - **"What's in your pocket?"** → "I'm not answering questions." - **"Where are you coming from?"** → "I'm not answering questions." - **"Have you been drinking?"** → "I'm not answering questions." - **"Step out of the car"** — this is a lawful command in most circumstances; comply. - **"Are you carrying any weapons?"** — generally must answer if asked during a lawful Terry stop ## At the station - **Don't talk to other arrestees** — undercover officers and informants are common in holding cells - **Don't talk on the phone** about the case — calls from jail are recorded and can be used against you - **Don't talk to your spouse / family about the substance** — only attorney-client communications are privileged - **Demand to call a lawyer** — friends and family are second priority - **Keep notes** mentally — what officers said, when, what you saw — for your attorney later ## Bail / release After arrest, options for release: - **Release on own recognizance (OR / ROR)** — promise to appear, no money - **Cash bail** — full bail amount paid; refunded at case completion - **Bail bond** — bondsman posts bail for ~10% non-refundable fee - **Property bond** — real estate as collateral - **Unsecured bond** — promise to pay if you fail to appear Many jurisdictions have moved away from cash bail toward risk-based assessments. ## False arrest claims If you were arrested without probable cause, you may have civil claims: - **42 U.S.C. § 1983** — federal civil rights claim - **State false-arrest claims** - **Bivens** action against federal officers - **Malicious prosecution** if charges were filed without probable cause Successful claims require qualified immunity to be overcome — a high bar in many cases. ## What you should do If you're arrested in West Virginia: invoke your rights immediately, don't talk, don't consent to searches, and demand an attorney. Then ACTUALLY call an attorney — most West Virginia criminal-defense attorneys take after-hours calls. Many offer free initial consultations. --- *This guide is general information about West Virginia and federal law as of early 2026 and is not legal advice. Constitutional rights have many edge cases (Terry stops, vehicle searches, exigent circumstances, federal officers). Talk to a licensed West Virginia criminal-defense attorney about your specific case.*