Criminal Law Frequently Asked Questions
Q. What is first appearance?
A. A Judge determines what your bond will be. This usually happens within 24 hours of arrest. Normally this hearing is NOT open to the public, is done over video feed to the jail, and is of very short duration.
Q. Do I have a right to a bond?
A. Under most circumstances, everyone has a constitutional right to a reasonable bond. A felony violation of probation charge, depending on the violation, can be an exception to this rule.
Q. The police did not read me my rights. Can I have the charges thrown out?
A. It depends. There are required circumstances that must be present to invoke MIRANDA rights. Please call us for more information.
Q. Do I have the right to remain silent, even if they have not read me my rights?
A. YES, you almost always have the right to remain silent. If the police are asking questions that appear to involve you in a crime, IMMEDIATELY ASK FOR AN ATTORNEY, AND REFUSE TO ANSWER FURTHER QUESTIONS.
Q. I have not been charged with anything or arrested, but the police want me to make a statement. Do I need an attorney?
A. YES! Police officers and detectives are in the business of closing cases. They do so by making arrests. It is to their benefit to get you to admit to a crime, so they can affect an arrest and close the case (from the police department's perspective).
The police are allowed to LIE to you in order to get you to confess. Many times, they will do just that. They will try to turn your words against you. They are taught to use these deceitful yet fully legal techniques. You should have the assistance of a professional; hire an attorney immediately.
Q. If the police ask to search my car, I have to let them, right? Otherwise, they will search anyway.
A. The general rule is this: if the police are asking if they can search, it means that they do not have a right to do so. If they had the right, they would not ask. You are NEVER required to give consent to a search. Even if under the circumstances they have the right, it should still be done without your consent.
Many times, the police will "set you up" by a series of questions. They ask you: "do you have any weapons, hand grenades, bazookas, explosives in your car?" You respond "of course not!" Then they ask "well, then you don't mind if we take a quick look, do you?" This makes you feel obligated to let them search. YOU ARE NOT REQUIRED TO CONSENT TO A SEARCH.
Q. What is an arraignment?
A. A Judge asks you how you wish to plea at arraignment. You should ALWAYS have an attorney prior to arraignment. Normally, your attorney will file a formal plea of NOT GUILTY on your behalf while he or she gathers information (called discovery) about your case. If you must appear for arraignment without an attorney, plea NOT GUILTY and hire an attorney IMMEDIATELY.
Q. If it's a minor charge, shouldn't I just plead guilty at arraignment?
A. NO. Some Judges have particular problems (idiosyncrasies) with minor charges. We have seen Judges that give anyone who pleads to petit theft charges jail time; same with soliciting prostitution defendants. Hiring an attorney is cheap insurance; especially when your freedom is potentially on the line.
Q. If the police suspect that I have been drinking and driving, do I have to perform the field sobriety tests?
A. ABSOLUTELY NOT! These "tests" have been designed for most people to FAIL. Yes, you read that correctly. We have NEVER seen an officer testify in court, deposition, or otherwise, as to how someone performed SO well that they knew they had made a mistake in thinking the defendant was intoxicated.
We have seen police officers asked to perform these "tests" in open court, and fail. They use your performance (or lack thereof) as evidence AGAINST you. You are not required to give the police evidence to use against you. Your failure to perform the tests is not proof of anything, and your license cannot be suspended for not performing roadside sobriety tests. Many people are too nervous, while others have chronic back problems (or other health issues) that would inhibit their ability to perform the "tests", whether sober or not.
Q. If suspected of DUI, do I have to blow into the intoxilyzer breath machine?
A. Yes and no. If you refuse, you will have your license suspended. If you suspect that you are well over the limit, then you should probably refuse, even though your license will be suspended.
If you blow several times the legal limit, it is hard to argue that you were not intoxicated. However, if you did not blow, and did not perform tests, the only evidence they really have against you is your behavior and demeanor on video.
Q. Do I have to have a license to carry a concealed weapon in order to carry a firearm in my car?
A. NO, you do not. Florida law allows every citizen (except those who are convicted felons, or have a domestic violence/ repeat violence injunction against them) to carry a firearm in their vehicle, so long as it is properly encased. A loaded firearm carried in a closed (but unlocked) glove box is LEGAL. A loaded firearm under your seat is not.
Q. What is a violation of probation?
A. A defendant can be sentenced to probation, rather than jail time. While on probation, defendants are required to check in with a probation officer at least once a month, pay costs of supervision, take drug tests, do community service, and other tasks. A violation of probation is an allegation that you have failed to abide by the conditions of your probation.
A charge of violation of probation (VOP) is a new criminal charge, and punishable the same as the underlying charge. If you were put on probation for possession of cocaine (a third degree felony punishable by up to 5 years Department of Corrections (DOC) and a $5,000.00 fine), and are subsequently charged with VOP, you will again face 5 years DOC and a $5,000.00 fine for the violation.
There are two kinds of violations: 'technical' violations, and 'new law' violations. A technical violation occurs when you are late for your monthly meeting with your probation officer. A 'new law' violation is when you are arrested for a crime while on probation.
You should know that just being arrested while on probation can be enough for a violation. A conviction on the new charge is not required.
If you are placed on probation for five years, and after four you are accused of violating, you DO NOT GET CREDIT for the four years that you successfully completed.
VOP can be very serious and complex, and can result in reinstatement of probation to prison. Dealing with a charge of VOP requires professional assistance. If accused of violating probation, you should hire an attorney IMMEDIATELY.
Q. I defended myself from an attack; I don't need an attorney, do I?
A. YES, YOU DO NEED AN ATTORNEY! Self defense is an affirmative defense, which means that it can exonerate you from a crime; however, it can be very complex.
For example: In Florida, you have the right to defend an attack on your home. If someone breaks down your door, and you subsequently shoot them with a firearm, you should call 911, report a home invasion robbery at your address, then you should hang up and dial an attorney. When the police arrive, tell them ONLY that there was a home invasion, and that you want to speak to an attorney.
Q. I was in a car with three other people. The police found a bag of narcotics in the car that I didn't know was there. It was not my car, and I was not driving. All of us were arrested; can they do that?
A. Yes, but all hope is not lost. If narcotics are found on one's person (in a pocket or purse) then that is called 'actual' possession. You are held responsible for items in your actual possession, or so close in proximity as to be considered in your actual possession. Items NOT in your actual possession are considered to be 'constructively' possessed. In constructive possession cases, the state has a much higher burden of proof necessary to prove their case.
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