Wednesday, July 9, 2008

What is a detainer?

We get at least 10 calls or emails a week about detainers. People want to know everything from the practicality of getting a detainer lifted and some folks want to know all of the technical aspects involving detainers.

Basically, if you have a detainer, you cannot get out of jail by paying bail. You must instead get your detainer lifted by the judge who put you on probation, or by a judge assigned to supervise your probation. In order to get the detainer lifted, you must appear in front of this judge, often referred to as the 'back judge' and ask them to lift the detainer. This can be accomplished by having the attorney file an order for hearing and request that the case be scheduled sooner than later. Once you are before the judge, they judge will look to see if you have any violations of your probation or parole and then determine if they want to re-sentence you or if they want to continue your probation. Often, the process is much more complicated then what i have written above.

A more advanced answer is that you have an original case that you were either found guilty or plead guilty and you now have probation with that back judge. While you are on your probation, you pick up a new case, meaning that you get arrested on a new case while you are serving probation.

In general there are two types of violations to probation: technical and direct. A tech is like a dirty urine or failure to report. A direct is a new conviction. Therefore, if you have a new arrest you may not have any violation yet but potentially, you have a direct violation. Some folks argue that the new arrest itself is a technical violation. However, in Philadelphia some people seem to get arrested routinely and never convicted, so the sheer volume of arrests is too great to make this really stick in Philly. However, in the rest of the state, a new arrest is generally viewed as technical violation.

If you have a new arrest, most judges will look to see what your new arrest is for: homicide? possession of marijuana? possession with the intent to deliver? rape? Depending on that new charge, your criminal history, your bench warrant history, and the judge's own personality, the judge will decide whether to remove the detainer now, or wait until after to outcome of the new case.

We have tremendous success in getting detainers lifted. However, in my opinion, the single most important factor, is the judge's own personality. The first question I ask a client when they call about a detainer is the judge's name.

By Brian J. Zeiger

15 comments:

  1. My boyfriend violated probation with dirty urine and failed to complete the drug program (because he graduated from school and began working. Schedule conflict) He went to court and the date was postponed until Dec 2. When he went to see his Probation Officer he was placed in jail. He now has a detainer without bail. What are the possible outcomes?

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  2. Do you have to pay to get a detainer lifted

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  3. What about a detainer for another state? If someone has been arrested in one state and didnt know there was a warrant in a different state?

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  4. It comes in as a fugitive of justice charge in PA. If your warrant is in Arizona and you get picked up here, you are held on a new charge of fugitive of justice. Its like a new case.

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  5. Someone that I know, who is on state parole, got arrested almost 2 months ago on the charges of attempted rape and whatever charges go along with that. The case was closed due to the complaining witness not showing up for the preliminary hearing three times. His parole agent said that he put in a recommendation for him and that he has never had any problems with him during his parole. Since the case is closed, and the charges have been withdrawn, what are his chances of getting his detainer lifted? And how long should it take. Note: the case was closed out on a Thursday.

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  6. What happens if you violated probation in one state (by crossing state lines) so you were put into prison and while in prison you were served a detainer from the state you visited while violating probation?

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  7. If a judge denies a motion to lift detainer can you appeal? Can you refile the motion?

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  8. My brother has been incarcerated for 21 years, approved for parole but has a detainer from 1992. We are getting the run around, what can we do? He can't be released from SCI coal until the detainer is removed. Please help...

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  9. What is a FOPD hold on a inmate?

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  10. They can only hold him for 30 days after the new case is dismissed unless he had technical violations. If he had technicals, they can give him a set back. That decision should be made with 30 days as well.

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  11. In reply to Kim N., you have to wait until you are extradited to the original state in which your were under supervision. The original state doesn't have forever to come and pick you up. The rules are slightly different everywhere so I can't give you an official timeline, though 30, 60 or 90 days seems like the max to me. An example would be if you are on state parole in Pennsylvania, and get picked up in New Jersey. Jersey will hold you for PA to come and get you. I am not certain how long Jersey will wait, but probably, 30, 60 or 90 days.

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  12. @Tara, you can try to appeal to the Superior COurt, but the Superior COurt would most likely say the denial of the motion to lift the detainer was not a final order and therefore deny the appeal because it isn't ripe. However, you can file a new motion to lift the detainer whenever you'd like, however, I would wait until there is a change in circumstance before re-filing.

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  13. @anon, if there is a detainer from 21 years ago, you need to contact the public defender or hire a lawyer from the county in which the detainer exists and file a motion to have the detainer lifted. Also, if it is a detainer from an old probation, you most likely can file another motion to terminate the probation.

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  14. Not sure what an FOPD hold means. Probably another jurisdiction other then the county has a detainer on the inmate, like federal court or state court. Also, it could be that there is a bail receipt, but the defendant owes money and the county has placed a hold on the bail money being returned to the defendant or the surety after the case is over.

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