Criminal Defense FAQs
Get the Answers you Need About Criminal Defense
Most people have a general understanding about what a crime
is, and what they should avoid to do if they get in trouble.
However, there is always some misunderstandings around criminal
defense. In an effort to help people get the basic information
needed in a timely manner we have put together the answers
for some
questions we frequently get from those involved in a criminal
case.
What are my rights if arrested?
The police came to my house and want to do a search. Should I let them in?
The police stop me and ask me questions. Should I answer them?
Can the police search my car if I am stopped for a civil infraction (speeding, following too closely, etc.)
Is there any possibility of cleaning up my criminal record?
Can I represent myself? What can a lawyer do for me?
How serious is DUI/DWI?
What is an Ignition Interlock Device?
What is a blood alcohol content and how much is considered illegal?
What happens if I refuse to take a breath analyzer test?
I got my license suspended. What can I do to get it back?
How does bail work?
Will my case be tried before a judge or a jury?
Is driving over the speed limit a crime?
What do I do if I am falsely accused of a crime
What are my rights if arrested?
If you are arrested, you have several constitutional
and statutory rights afforded to you. First and foremost, you
have the right to remain silent. You actually have this right before
you are arrested if you are detained by law enforcement and they are asking you
questions about a crime. You also have the right to have an attorney at all critical stages of the prosecution.
Unless you are charged with a crime that is punishable by life or a violation
of probation, you have the right to have a reasonable bond set. If you are charged
with a felony, you have the right to depose the
witnesses against you. You have the right to know and see all of the evidence the
State of Florida intends to use against you, i.e.
police reports, witness statements, video tapes, scientific evidence, reports of
experts, etc. Finally, you have the right to a jury
trial. Unless you are charged with a capital offense, the jury will consist of
six people. Please call us if you have any questions concerning your rights.
If you are arrested and need legal advice, call our
criminal defense attorneys at (407) 245-1232 or fill-out
our online form and we will contact you as soon as possible.
We have emergency assistance 24 hours a day, 7 days
a week.
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The police came to my house and want to do a search. Should I let them in?
If the police come to your home and want to conduct a
search, you do not have to let them into your home unless
they have a search warrant. If they have a warrant, they
are allowed to enter and search your home. However, before entering,
they are required to knock and announce their presence.
If they break into your home
without first knocking and announcing, you may have
a basis to suppress the results of the search. Additionally,
law enforcement has to convince a judge that they have "probable cause" to
believe they will find specific evidence in your
house before they can obtain a search warrant. Sometimes,
even after a warrant has
been obtained and search has taken place, it may
be determined that law enforcement did not, in fact have
sufficient probable cause to obtain a search warrant
and that the original judge should not have signed the warrant. In these
types of cases, it is possible
to have the evidence gathered from the search suppressed.
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The police stop me and ask me questions. Should I answer them?
If you are stopped by law enforcement for a legitimate reason,
i.e. speeding, you should answer all of the routine questions.
(name, address, etc.). However, you are not required to consent
to a search of our car. You do not have to answer any questions
that do not deal with the ticket you are receiving. If you are
stopped on the street for no apparent reason (called a "consensual
encounter" by the courts), you do not have to answer ANY questions,
including "what is your name?" if you do not want to.
You are free to keep walking and not respond to the officer or
simply answer with a polite, "No thank you".
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can the police search my car if I am
stopped for a civil infraction (speeding, following too closely, etc.)?
NO, unless they have probable cause to believe they
will find evidence relating to a crime in the vehicle.
Generally, when a law enforcement officer
asks
you if
they can
search you, your car, or
your home, it means that they do not have a legal right
to do
so. If they don't have
a legal basis to search, they can still search if you
give them permission.
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Is there any possibility of cleaning up my criminal record?
Many times, people are eligible to have their record sealed or
expunged. There are a variety of factors that will determine if
you are eligible For this service. The most basic requirement is
that the case was either dropped or you received a "withhold
of adjudication" when you went to court. If you are a convicted
felon, you may be eligible for a restoration of civil rights. Please
call us at (407) 245-1232 if you have any questions regarding your
eligibility for these services.
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Can I represent myself? What can a lawyer
do for me?
Yes, a person is allowed to represent him or herself in court;
this is called Pro Se representation. However, we strongly recommend
that a person (even a lawyer) not represent him or herself for
several reasons.
First, there are specific procedures set forth in the
applicable rules (for example, The Florida Rules of
Criminal Procedure) that must be followed. Failure,
to follow the procedural rules can have
a severe adverse impact on a litigant’s case. Also,
there are complex rules regarding evidence that a person
without a legal background will not be aware of as well
as many other points of law that
will be missed by a person who is not well versed in
a particular area of law. Additionally, in all criminal
cases, the State has a lawyer representing them in prosecuting
any one charged with a crime in court. Finally, a person
with an emotional and personal interest in a
case
may
not
make
the best choices regarding how to proceed
on a case; this applies to attorneys who want to represent
themselves as well.
If you are found guilty of a felony in the State of Florida
you will become a convicted felon and, as a consequence,
you will lose your civil rights. If you are not a U.S.
citizen you can even be deported.
A criminal defense attorney knows what the State must
prove to get a conviction for every type of
Criminal offense. He or she also understands the possible
defenses to those crimes, which puts criminal lawyers
in a better position when defending a case. Remember
that you should always consult an attorney
before
pleading guilty or no contest to any criminal charge.
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How serious is DUI/DWI?
Driving a motor vehicle Under the Influence of alcoholic
beverages or a controlled substance (DUI) is a misdemeanor
that is taken very seriously by prosecutors in the State of Florida.
A first conviction requires
by Florida Statutes that a person be placed on probation,
complete 50 hours of community service, complete DUI
school, complete a substance
abuse course, attend the VIP (victim impact panel), and
pay several hundred dollars in fines and court costs
(the fine itself is between $250.00 and $500.00). A six
month license suspension
and temporary vehicle immobilization are also required
by statute. Jail is not mandatory on a first DUI; however,
a person can be sentenced up to six months in jail on
a first time DUI.
Second and subsequent convictions require a more lengthy and costly advanced DUI School, higher fines,
longer license suspensions and the possibility of longer jail sentences. Depending on the date of a
person’s prior conviction, a jail sentence may be mandatory for a subsequent DUI. A person convicted
of several DUI’s may likely be charged as a felon. Felony DUI may result in up to five years
in state prison. Also, a person with multiple DUI convictions can lose there privilege to drive—FOREVER.
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What is an
Ignition Interlock Device?
The Ignition Interlock Device is an in-car alcohol breath
screening device sometimes placed inside a vehicle of
a peron under DUI probation and connected to
the ignition system. Once installed the
person must blow into it and pass a breath test in order
to be able to start the vehicle. The device also
requires randomly
breath samples to keep the engine working.
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What is a blood alcohol content
and how much is considered illegal?
Breath alcohol content measures the amount of alcohol
in a person’s breath. A .08 breath alcohol level means that there
are .08 grams of alcohol per 210 liters of breath. Blood alcohol content
measures the amount of alcohol in a person’s blood. A .08 blood alcohol
level means that there are .08 grams of alcohol per 100 milliliters of
blood.
If a person is driving a motor vehicle in Florida and has
a breath or blood alcohol level of .08 or greater, he or she is presumed
guilty of DUI but other evidence may be introduced to challenge that presumption.
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What happens if I refuse to
take a breath analyzer test?
If a person refuses to submit to a lawful test of his
or her breath, urine, or blood, their driving privileges
may be suspended for one year for a first refusal and
eighteen months in the case of a second or subsequent
refusal. This suspension may be contested at an administrative
hearing; this hearing must be requested within ten days from the day of
the arrest. Additionally, a person whose license was
previously suspended for refusing to submit to a lawful
test of his or her breath, urine, or blood and is arrested
again for DUI and refuses to submit to a breath, urine
or blood alcohol test, commits a first degree misdemeanor.
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I got my license suspended. What can
I do to get it back?
It all depends on the reason for suspension. Sometimes all that is required is that a person pay some
outstanding tickets. DUI suspensions will require the completion of DUI school and a reinstatement
fee. A more serious suspension involves a situation where a person has multiple DUI convictions. In
those cases, there may be a lengthy waiting period without any driving and then a person can petition
for limited driving privileges, or a hardship license, which allows driving for limited purposes such as
work, medically necessary appointments and the like. Enough DUI convictions may suspend driving
privileges permanently without the possibility of a hardship license.
Another serious suspension is a Habitual Traffic Offender Suspension, or HTO suspension. Three
“serious traffic offenses”, as defined by statute, within a five year period will result
in an HTO suspension. Also, fifteen moving violations within five years can result in HTO status and the
accompanying five year suspension. A person may be eligible for a hardship license after one year of
HTO status; they may petition the DHSMV for a hardship license after the first year of the HTO status runs,
but only if they have not driven during that period. In some instances, the validity of HTO status itself
can be challenged.
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How does bail work?
A bail is the legal instrument that allows a person being
charged with a criminal offense to be temporarily released
from jail pending the outcome of his/her case. The bail
usually establishes
a sum of money that must be forfeited by the bondsman
if the accused fails to appear in court for trial.
A Bail may be posted in two ways. A bondsman can be hired and for 10%
of the amount of the Bond will post security, or the defendant my post
the full amount which will then be returned at the close
of the case.
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Will my case be tried before a judge or a jury?
The U.S. Constitution gives a person accused of a crime
the right to be tried by a jury in almost all cases.
In Florida, as well as in
most States, the jury must arrive at a unanimous decision
to either convict
or acquit. The potential jurors must be selected randomly
within the community, and the actual jury must be selected
by a process which allows the judge and lawyers to screen
out biased
jurors.
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Is driving over the speed limit a crime?
Traffic violations can be felonies, misdemeanors, or infractions. Felonies and misdemeanors are crimes, but
infractions are usually not thought to be part of the criminal justice system. Driving
over the speed limit is usually classified as an infraction in many States, including Florida, and is
not considered a crime. Speeding is usually punished by a fine. These fines increase in
proportion to the amount over the speed limit for which the ticket is written.
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What do I do if I am falsely accused of a crime?
Being innocent does not guarantee you that the charges
will eventually be dropped or that a jury will find
you not guilty. There are many people in jail found
guilty of crimes that they did not commit.
If
you are accused of a crime you did not commit, you should
contact a criminal defense attorney as soon as possible.
Call us at (407) 245-1232 or fill out our contact
form for legal help. Our emergency assistance is available
24 hours a day, 7 days a week.
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