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Criminal Defense From A Former Prosecutor

Understanding the difference between detention and an arrest

If you are facing criminal charges, the situation likely began with an interaction with law enforcement. Perhaps they started with a few questions or perhaps you immediately found yourself in handcuffs. If there was any ambiguity, it might be unclear whether you were arrested or simply in detention. It is worth noting that while the former may remain on public record, the latter is an informal interaction.

Why does this matter? Even if you are acquitted of the charges you face, having an arrest on record can negatively impact your life. An attorney can fight to have the instance categorized as a detention. The following are three of the top criteria which determine whether an arrest or a detention took place.

Duration of your interaction

Generally, if a law enforcement officer instigates an interaction that is not an arrest, that interaction must be reasonably brief. Though no specific time limit exists, any interaction that extends beyond that of a cursory and unobtrusive exchange is either an arrest or a false arrest — the latter of which is a serious legal violation. How long the interaction lasts is thus an important consideration. 

Freedom to leave the scene

Another important criterion in determining whether an arrest or detention took place is whether or not you were free to leave the scene. If the answer is yes, then you were merely detained — and this should have been brief. If an officer does not allow you to leave, however, he or she has effectively arrested you.

Physical treatment of suspect

Though the word detainment calls to mind physical confinement, if you are physically impeded by law enforcement, this typically qualifies an interaction as an arrest rather than detention. According to PoliceLink, for example, handcuffing could even be considered excessively forceful in some instances. If the police handcuff you or the interaction otherwise becomes physical, you are the subject of arrest.

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