Being Arrested
W. Va. Code § 62-1-5 — before a magistrate without unnecessary delay, and a citation in place of arrest
- A person arrested is taken without unnecessary delay before a magistrate of the county where the arrest is made.
- For a misdemeanor not involving injury, committed in the officer's presence, the officer may issue a citation instead of arresting, if the person will likely appear.
- The magistrate tells the person the nature of the complaint, the right to counsel, and that no statement is required.
The person is given reasonable means to reach a lawyer or a relative to obtain counsel or arrange bail, and is not jailed or moved from the county before having a reasonable opportunity to do so.
Several rules about an arrest come from the Supreme Court of the United States rather than from this state's code. It has held that before questioning a person in custody, officers must warn that the person may remain silent, that anything said can be used against them, and that they have a right to a lawyer, appointed if they cannot afford one; that a person arrested without a warrant is entitled to a prompt decision by a judge on whether there was probable cause; and that officers generally need a warrant to search the data on a phone taken from a person they arrested. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Whether a particular arrest was lawful is a question for a licensed West Virginia attorney.
Sources for this section (6)
- W. Va. Code § 62-1-5 — Delivery of prisoner before magistrate
- W. Va. Code § 62-1-5a — Citation in lieu of arrest; failure to appear
- W. Va. Code § 62-1-6 — Informing defendant of nature of complaint and his rights
- Miranda v. Arizona, 384 U.S. 436 (1966) — Right to remain silent and to counsel during custodial interrogation
- County of Riverside v. McLaughlin, 500 U.S. 44 (1991) — Probable cause review generally within 48 hours of a warrantless arrest
- Riley v. California, 573 U.S. 373 (2014) — Police need a warrant to search a phone seized during an arrest
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed West Virginia attorney.