What to do if I am arrested? Guide to the first 24 hours
Being arrested is one of the most disturbing experiences a person can go through. Arrest happens unexpectedly, in circumstances that generate a mixture of fear, confusion, and disorientation that can lead to serious and irreversible mistakes in the first moments. Those first moments, those first hours, are also the most decisive of the entire criminal process.
What happens from the moment the police arrest a person until they are released or brought before a judge can decisively determine the outcome of the entire subsequent process. The statements that are made —or avoided—, the attitude that is adopted, the rights that are exercised or not exercised in those hours have a direct influence on the investigation, on the available evidence, and on the real possibilities of defense.
This article is a practical and clear guide for someone who has just been arrested or for someone who wants to know in advance how they should act if they ever find themselves in that situation. It is not a manual to evade justice: it is about knowing one’s rights and exercising them correctly, which is exactly what the Spanish Constitution guarantees to every detained citizen.
The first thing you should know: arrest is not a conviction
Before going into the specific steps that must be followed, it is essential to be clear about a starting point: being arrested does not mean being guilty. Arrest is a precautionary measure of a provisional nature that the police can adopt when there are indications that a person has participated in the commission of a crime, but it does not imply any statement about guilt. The presumption of innocence continues to protect the detainee at all times.
This distinction is not only a consolation: it has very important practical consequences. It means that the detainee is not obliged to behave as if they were guilty, does not have to justify themselves before the police, does not have to explain anything or prove their innocence at that moment. The burden of proof lies with the accuser, not with the person who is arrested. Keeping this perspective clear in a moment of high emotional tension is the first step to acting correctly.
Rights of the detainee: know them before you need them
The Criminal Procedure Act and the Spanish Constitution guarantee every detained person a set of fundamental rights that must be respected from the very moment of arrest. The police are obliged to inform the detainee of these rights in a comprehensible manner and in a language they understand:
- The right to remain silent and not to make a statement if they do not wish to, without that refusal being interpreted against them.
- The right not to testify against themselves and not to confess guilt.
- The right to know the facts they are accused of and the reasons for their arrest.
- The right to appoint a lawyer of their choice and to communicate with them privately before making a statement.
- The right to free legal assistance if they cannot afford a private lawyer, through a court-appointed lawyer.
- The right to have their arrest communicated to a family member or trusted person.
- The right to be assisted by an interpreter free of charge if they do not understand or speak Spanish.
- The right to receive medical assistance if their health condition requires it.
These rights are not negotiable. The police are legally obliged to guarantee them, and any violation may have direct consequences on the validity of the proceedings carried out. If you are not informed of your rights before being questioned, any statement you make may be declared null.
Step 1: stay calm and do not do anything impulsive
The first reaction of many people when arrested is to want to explain everything, clarify the misunderstanding, prove that they have done nothing wrong. This reaction, although understandable, is one of the most harmful mistakes that can be made at that moment.
Speaking without a lawyer present, even to “clarify things,” can be devastating for the subsequent defense. Everything said to the police can be used against you. Explanations that seem innocent may contain contradictions that the prosecution will exploit. Details given “to help” may open lines of investigation that otherwise would not have existed. The rule is simple and absolute: before the police, without a lawyer, nothing is said.
Staying calm also means not physically resisting arrest. Physical resistance, even if minor, can worsen the legal situation and lead to additional charges for assault or resistance to authority. If the arrest is illegal or being carried out incorrectly, the time to challenge it is before the judge, not at the place of arrest.
Step 2: immediately request a lawyer and do not speak until they arrive
Requesting a lawyer must be the first and most important action of the detainee. From that moment on, the police are obliged to suspend any questioning until the lawyer is present. There is no legally valid reason to question a detainee without the presence of their lawyer.
If you have a trusted lawyer —a criminal defense lawyer of your choice— you must provide their details to the police so they can be contacted. If you do not have a lawyer or cannot afford one, you have the right to request a court-appointed lawyer, who will be designated by the Bar Association and must be present before any statement is made.
While waiting for the lawyer to arrive, do not answer any questions, even if they seem informal or routine. Officers may try to start a conversation in an apparently casual way, but anything you say may be recorded and used later. The only valid response during this time is: “I will not make a statement until my lawyer arrives.”
Once the lawyer arrives, you have the right to a private interview before making any statement, in which the lawyer will explain the situation, advise you on how to act, and decide with you whether it is advisable to make a statement, remain silent, or answer only certain questions. This conversation is confidential and the police cannot be present or access its content.
Step 3: the police statement — what to do and what not to do
After the interview with the lawyer, the detainee must decide how to handle the police statement. This is one of the most important decisions in the entire process and must be made with legal advice, not unilaterally.
In many cases, the lawyer will recommend exercising the right to remain silent. This decision cannot be interpreted as an indication of guilt: it is a constitutional right that can be freely exercised. Remaining silent before the police is especially prudent when the detainee does not know exactly what they are accused of, when the situation is unclear, or when any explanation could be misinterpreted.
If the decision is made to give a statement, it must be coherent, precise, and limited to what is strictly necessary. It is not about telling your whole life or explaining circumstances that no one has asked about. The lawyer will guide the detainee on which questions to answer and how to do so. For any question that the lawyer considers inappropriate, they have the right to object and indicate that it should not be answered.
It is essential to remember that the police statement does not have the same evidentiary value as a statement before a judge, but it can be used to highlight contradictions if a different version is later given before the investigating judge. Therefore, consistency between both statements is essential.
Step 4: the detention period — how long they can hold you
Police detention has a legally established maximum duration. As a general rule, the police may detain a person for a maximum of 72 hours without bringing them before a judge. After that period, the detainee must be released or brought before a judge.
In certain exceptional cases —especially in terrorism cases— this period may be extended by a judge up to a maximum of five days. But outside these exceptional cases, if the police hold a detainee beyond 72 hours without judicial oversight, the detention becomes illegal and the detainee or their lawyer may file a habeas corpus petition to demand immediate release or appearance before a judge.
During detention, the detainee has the right to rest, to receive food and water, to access medical care if needed, and to be treated with respect and dignity. Any degrading, coercive treatment or treatment that violates their physical or psychological integrity is illegal and may lead to criminal liability for those responsible.
Step 5: being brought before a judge
Once police detention concludes, if the police consider there are sufficient indications to continue the process, the detainee is brought before the duty investigating court, where the judge decides whether to release them —with or without precautionary measures— or to order pre-trial detention.
This moment —the appearance before the judge— is of enormous importance. The judge will make a decision that may affect the detainee’s freedom for weeks, months, or even longer. Therefore, it is essential that the lawyer is present and prepared to argue against pre-trial detention and propose less restrictive alternatives if necessary.
If the judge orders pre-trial detention, the lawyer may appeal that decision before the Provincial Court through an appeal. This appeal must be filed urgently, because each day in pre-trial detention has a significant impact on the detainee’s life. A good lawyer acts immediately to explore all possible ways to obtain the client’s release.
What you should never do during detention
The hours of detention are a moment of high vulnerability in which it is easy to make mistakes that are very difficult to correct later. These are the mistakes that must be avoided at all costs:
- Making a statement without a lawyer present, even if the police say “it’s just to clarify” or that “it’s in your interest to cooperate.”
- Signing any document without your lawyer having read and approved it beforehand.
- Contacting witnesses, victims, or other people involved in the case from the place of detention, even by phone.
- Talking about the case with family or friends in places where you may be overheard, including calls from the police station.
- Physically resisting arrest or showing an aggressive attitude toward officers.
- Believing that cooperating without a lawyer will benefit you: in the vast majority of cases, unsupervised cooperation does more harm than good.
Communication with the lawyer: an inviolable right
One of the most important rights of the detainee —and one of the most frequently violated in practice— is the right to communicate privately with their lawyer before making any statement. This communication is confidential: the police cannot listen, record, or be present during it. Violation of this right may lead to the nullity of the subsequent statement.
In certain circumstances, a judge may order incommunicado detention, which temporarily limits the detainee’s right to communicate with the outside world. This measure is exceptional, reserved for very serious crimes such as terrorism, and has a maximum duration. Even under incommunicado detention, the detainee has the right to legal assistance, although in this case the lawyer will be court-appointed and cannot be chosen by the detainee.
Having a trusted criminal lawyer whom you can call in case of arrest is one of the most intelligent precautionary measures any citizen can take. Not because they expect to be arrested, but because in moments of greatest vulnerability, having a trusted professional who acts immediately can make the difference between freedom and pre-trial detention.
Frequently asked questions
Can I refuse to have my fingerprints taken or to be photographed by the police?
Fingerprinting and police photographs are identification procedures that the police may carry out. Their purpose is to identify the detainee and create the corresponding police record. Actively refusing these procedures may be considered resistance and worsen the situation. However, it should be verified, with the help of a lawyer, that these procedures are carried out with legal guarantees and that the data obtained are used exclusively for lawful purposes. Otherwise, a judicial order may be required.
Can the police search me or my belongings during detention?
Yes, within certain limits. The police may conduct a superficial security search at the time of arrest to ensure the detainee is not carrying weapons or dangerous objects. They may also search items carried by the detainee if there is justified cause. However, access to the contents of electronic devices —mobile phones, tablets, computers— generally requires judicial authorization, and data obtained without such authorization may be declared null. If your phone is accessed without consent and without a warrant, inform your lawyer immediately.
Can I call my family from the police station?
You have the right for the police to inform a family member or trusted person of your detention. However, this does not necessarily mean you can make the call yourself at any time: the police will communicate the detention as established by law. When you are able to communicate externally, remember that conversations may be monitored or recorded, so you should never discuss the case. Limit yourself to informing that you are detained and asking them to contact your lawyer.
What is habeas corpus and when can it be requested?
Habeas corpus is an urgent procedure to protect personal liberty that allows the detainee —or anyone on their behalf— to request a judge to review the legality of the detention. It can be requested when the detention lacks legal requirements, when the detainee is subjected to illegal conditions, or when the maximum legal detention period has been exceeded without being brought before a judge. The judge must resolve the request urgently, within hours. If the detention is declared illegal, the detainee must be released immediately.
What happens to my job or personal obligations while I am detained?
Detention is an exceptional situation that may affect many aspects of a person’s life: employment, family obligations, financial commitments. From a labor standpoint, detention alone does not justify dismissal, although prolonged absence due to pre-trial detention may create complex situations that must be assessed case by case. Your lawyer can help manage communication with your employer and protect your labor rights. Regarding urgent family obligations —dependents, minors— the court may be asked to adopt protective measures during detention.
