Police responding to a scene of reported criminal activity or responding in observance of in-view criminal activity are empowered with a measure of discretion in choosing whether to arrest or cite in response to criminal activity. In other words, police are not necessarily bound with the absolute mandate to arrest or write a ticket to offenders but are allowed to give breaks for certain offenses.

Probable cause

In making the affirmative decision to arrest or cite, police are bound by the standard of probable cause to believe that a crime has been committed or is being committed and that the subject of arrest or the recipient of the ticket is the offender. This level of proof involves less than absolute certainty but significantly more than mere hunch. In simple terms, probable cause means that a reasonable person in the shoes of the officer would be led by all attendant circumstances to believe that the subject is a criminal offender. Ultimately, officers on scene must make a decision whether criminal charges are appropriate. However, even when probable cause is established, arrest and charges might be waived by officers.

The concept behind arrest and citation is the theory of criminal justice, which serves a twofold purpose: punitive measures, and deterrence. Monetary fines and jail time serve to punish offenders for trespasses committed against society. By setting an example, they also deter others from committing the same violation as well as the offender from recidivism.

While keeping the goals of criminal justice in mind, police are more likely to give a pass to an offender who, under the circumstances, they believe is not likely to commit the same offense again, or whose criminal intent lacked sincere malice.

Mitigating circumstances

Sometimes, a criminal or traffic offender might offer a compelling reason for committing the violation in question. To illustrate, consider the following scenario. A mobile police officer observes a vehicle fail to stop at a red light and conducts a traffic stop of the vehicle. Upon making contact with the offending driver, the officer discovers that a passenger in the car is a woman in labor, experiencing contractions. The driver is the husband of the woman and is transporting her to a hospital emergency room. Before violating the red light, the driver slowed and looked in all directions to ensure that the passage through the light was safe. In this scenario, a reasonable police officer might decide not to write a citation. The violator here is not likely to possess sincere malice in violating the red light and is also not likely to commit the same offense in the future.

Good police officers sometimes allow the subject of an investigatory stop the opportunity to speak. If pulled over or otherwise stopped by police for investigation of some offense and provided a chance to talk, it can be beneficial for the subject to offer circumstances, if any, that might mitigate the culpability surrounding the offense. Of course, the Fifth Amendment provides the right for a subject to remain silent and not incriminate himself, and anything said can be used as evidence in court. Despite this, legitimate circumstances that minimize criminal intent and reduce suspicion of recidivism might convince the officer not to cite, as in the above scenario. However, these circumstances are subjective and are separated from flimsy excuse by a thin line.

Get legal representation  

If you are facing criminal charges and you believe that circumstances surrounding your arrest either constitute innocence or mitigating circumstances, allow an experienced criminal defense team to articulate your case. Contact the criminal defense attorneys at The Nahajski Firm at (206) 621-0500 for a free and confidential initial consultation.