YES, CHARGES CAN BE FILED WITHOUT ARREST
Many people assume that an arrest must occur before criminal charges can be brought, but in California that is not always true. In fact, prosecutors can initiate formal charges after a thorough investigation and review of the evidence, even when no arrest has taken place.
The process begins with law enforcement and the district attorney’s office gathering facts and preparing for possible prosecution. This means filing charges can happen later, once the DA review is complete and a decision is made to pursue a pre-file charging document.
For individuals who believe they are safe simply because they haven’t been arrested, understanding this process is critical. At Stein Defense, we help clients navigate these complex interactions with law enforcement and prosecutors to protect their rights before, during, and after charges are filed.
HOW IT HAPPENS
When a potential crime is reported law enforcement agencies, such as local police or the sheriff’s office, often launch a detective investigation to collect evidence and build the factual basis for possible charges. Detectives interview witnesses, obtain physical evidence, review recordings, and document their findings in detailed reports.
Once there is sufficient information, investigators compile evidence packets which are submitted to the Orange County District Attorney’s Office for evaluation.
Once a prosecutor receives the evidence, they exercise DA discretion in determining whether to file charges. Prosecutors do not have to wait for an arrest to make this decision. Instead, they can choose to file a complaint, information, or indictment based on the strength of the evidence and legal sufficiency of the case.
This means an individual could learn about pending charges by mail or through a subpoena rather than through immediate physical arrest.
The ability to file charges without arrest allows the justice system some flexibility, especially in complex or sensitive investigations. However, this also creates uncertainty for people who find themselves under scrutiny without understanding what comes next.
Knowing how and why this process works gives you a better chance to respond proactively.
WHAT YOU SHOULD DO
If you believe you are under investigation or have been informed that charges may be coming, taking immediate and strategic action is essential.
Engaging in pre-filing advocacy with an experienced criminal defense attorney can sometimes influence the prosecutor’s charging decision. Your attorney can present mitigating factors, challenge the strength of the evidence, and advocate against filing charges before they are even brought.
Equally important is exercising your right to provide no statements to law enforcement without counsel present. Anything you say can be used against you later, and premature communication with investigators can weaken your defense. Instead, consult early and often with a defense lawyer who understands how prosecutors think and work.
Finally, counsel contact should happen as soon as you suspect legal trouble — not after an arrest or formal charging document has been issued. An early attorney relationship gives your legal team the time to develop a strategy, protect your rights, and gain a strong grasp of the prosecutorial process before it negatively impacts your life.
At Stein Defense we stand ready to help you through every stage of the criminal justice process, from investigation through resolution, with experience, discretion, and tenacity.
