There are any number of reasons that could lead to being arrested, and almost as many reasons for having your original charge dropped or dismissed. In this post we’ll take a look at why charges may be dropped and then review your options for clearing your arrest from your record.
How an Arrest Is Made
Justification for an arrest can be made in several ways. The more common justifications are:
- When a crime is witnessed by a police officer
- When a police officer has reason to believe a crime has been committed
- A warrant has been issued for an arrest
With the exception of an arrest on a warrant, the burden of justification for making an arrest falls on the arresting officer.
What Happens After an Arrest
Once you have been arrested, the only person who can dismiss a criminal charge is the prosecuting attorney for the county in which the alleged crime occurred. If the person who made a criminal charge against you changes their mind about having you arrested, that person cannot retract their statements that led to your arrest.
That person may, however, inform the prosecuting attorney that they will not testify against you. If accuser’s testimony forms the bulk of the evidence against you, the prosecuting attorney may dismiss the charges against you without prejudice.
When a charge is dismissed without prejudice the prosecuting attorney may refile the charges made against you at a future date. The prosecuting attorney also has the option to dismiss charges with prejudice, meaning that the charges cannot be filed again. As you might imagine, prosecutors will very rarely dismiss with prejudice and such dismissals are usually ordered by a judge.
After you have been arrested and charged with a crime, you have the right to a lawyer who will represent you in all stages of the criminal justice process. In many cases your lawyer may challenge the circumstances of your arrest or point out the lack of evidence against you.
If he or she is successful, the prosecuting attorney may drop the charges or the court may dismiss them for any number of reasons. Among the reasons for dropping or dismissing a charge are:
- Evidence obtained after an illegal traffic stop or an illegal search was thrown out
- Lack of sufficient probable cause to make an arrest
- The evidence is not sufficient to justify the charge
- The state’s attorney feels that there is little chance of getting a conviction
- Witnesses may have been mistaken and later changed their story or a witness cannot be located
- The arresting officer was simply wrong
Once a charge has been dropped, it can usually be refiled by the prosecuting attorney at any time until the statutes of limitations that apply to that particular charge have expired. In general, the Texas statutes are:
- Statutes of limitations never expire: murder, manslaughter, sexual assault, aggravated sexual assault, crimes against children, trafficking in persons, leaving the scene of an accident with fatality
- 10 years: crime against elderly or disabled, arson, compelling prostitution
- 7 years: most financial crimes and identity theft
- 2 years: misdemeanors
Is It Possible to Sue Someone Who Made a False Accusation Against Me?
Judges and prosecuting attorneys, as well as their staffs and police officers, are immune from prosecution for any actions that they perform in their official capacity. As to the person or persons whose statements led to your arrest, you may have a civil case against them if you can prove that they deliberately lied to the police or deliberately committed perjury in their sworn statements that led to your arrest.
Your best hope in such situations is to try to convince the local prosecuting attorney to bring charges against your accusers for deliberately making false statements, or even perjury if they lied under oath.
How Can I Remove the Arrest and Charge from a Public Record?
Under Texas law, you have have an option that may result in a change to your criminal record if the charges on which you were arrested were later dropped. This is called having your record expunged. To have your record expunged means that any and all references to your arrest, including court records, records in the prosecuting attorney’s office, and any police department that participated in your arrest will be destroyed, giving you a “clean slate.” This will also allow you to truthfully state, even under oath, that you have not been arrested or convicted of a crime.
If you meet the requirements set forth in the Texas Criminal Code and summarized below, you can petition the court to have the record of your arrest where the charges were later dropped expunged from your record if:
- You were formally charged with a crime but the charges were later dropped and the statute of limitations has expired, or
- You were arrested but never formally charged by an indictment or arraignment and you have satisfied the mandatory waiting period required by law.
The waiting periods mentioned above are:
- Class C misdemeanor: 180 days from the date of arrest
- Class A or B misdemeanor: one year from the date of arrest
- Felony: three years from the date of your arrest
Although the forms required for an expungement petition can be found online and at the office of the clerk of court, you should be very careful with your request. It is far safer to have your request handled by a criminal defense attorney who has experience in the Texas courts and in the finer points of the Texas Criminal Code.
