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What is Custody?

A person is in “custody” when they are arrested, or under other circumstances where their movement is restricted under the authority of a police officer. In deciding whether someone is in custody, a court looks at the circumstances of the restriction, not the opinion of the person allegedly detained or the law enforcement officer(s).

When someone is arrested for a felony in Michigan, the law requires the police to take them before a judge or magistrate for arraignment without unnecessary delay. MCL §764.28 states:

Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer.

Common Questions

How long you can be held in custody?

Suppose a defendant cannot post bond or bail for a pending case. In that case, they will remain in custody until the matter is dismissed, they are sentenced to a noncustodial sentence, or they complete a custodial sentence. If someone is sentenced to prison, they must serve their mandatory minimum sentence and seek release from the Michigan Parole Board.

What happens when in police custody?

After someone is arrested, they can be briefly detained in police custody. Generally, police custody doesn’t exceed a day or two. If the Defendant remains in custody longer than a few days, they will be transferred to a county jail until a court orders their release or they complete a sentence.

What should I do when in police custody?

You should express that you are invoking your right to remain silent and ask to speak with an attorney. Nothing else. Do not speak with law enforcement without an attorney present. Do not sign anything without an attorney present.

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