Orlando Criminal Defense FAQ
Click the links to browse to each subject.
- Chronology: The Arrest Process
- When You Get Arrested Dos & Don'ts
- DUI
- Youth and Violence Facts
- Searches & Seizures: The Limitations of the Police
- Understanding Bail and Bonds
Chronology: The Arrest Process
When someone is arrested by the police, a specific series of events follows. The police must follow legal procedures during the actual arrest process, and at many other stages along the way to actually placing a suspect in jail.
- An arrest occurs when police take you into custody and is complete the moment you, as the suspect, are no longer free to walk away from the arresting officer.
- In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona, that individuals who are under arrest for suspicion of having committed a crime have certain rights that must be explained to them before any questioning may occur. The rights are designed to protect your right to be free from self-incrimination under the Fifth Amendment to the U.S. Constitution. There are five different rights, known as the "Miranda Rights":
- You have the right to remain silent and to refuse to answer questions.
- Anything you do say may be used against you in a court of law.
- You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future.
- If you cannot afford an attorney, one will be appointed for you before any questioning if you wish.
- If you decide to answer questions now without an attorney present, you will still have the right to stop answering at any time until you talk to an attorney.
Note: Miranda rights must only be read when an individual is in police custody and is under interrogation. Therefore, if the police stop you to give you a traffic ticket, and you start explaining to them why you were speeding, you cannot later protest that you were not read your Miranda rights. While the police may have been "interrogating" you in a certain sense, you were not in police custody unless your freedom of action was curtailed to a degree associated with formal arrest; see your state laws for a definition of police conduct that would be associated with formal arrest.
- If you are stopped by the police, they may frisk you by performing a "pat-down" of your outer clothing in order to determine if you are concealing a weapon. Later, after your arrest, they may perform a full-blown search of your person and immediate surroundings to ensure that you do not have any weapons, stolen items, contraband, or evidence of a crime. If the police take possession of your car, it may be searched as well.
- In many jurisdictions, you have the right to make a telephone call, or calls, once you are placed into custody. In some states, you are only allowed to call someone in order to secure a lawyer or to arrange for bail, although you may be able to call a family member or friend to help you make those arrangements. Generally, you are not entitled to make a telephone call until after you have been booked.
- The police may take any personal property or money that you have with you and put it in a safe place after performing an inventory. The police will ask you to sign the inventory and, after reviewing it, you should do so if you agree with the contents of the inventory.
- Once you are arrested, you will be booked. During the booking procedure the police will ask you for basic information about yourself (such as your address and birth date), and fingerprint and photograph you. You may also be asked to participate in a line-up, give a handwriting sample or do similar things.
- If you are detained but not booked within a reasonable period of time (usually several hours, or overnight) your attorney may go to a judge and obtain a writ of habeas corpus. A writ of habeas corpus is an order issued by the court instructing the police to bring you before the court so that a judge may decide if you are being lawfully held.
- Once you are arrested by the police, the information will be provided to the appropriate prosecutor's office. The prosecutor will then review the information before making an independent decision as to what charges should be filed.
Note: If you have been arrested for a felony, a prosecutor may enlist the services of a grand jury to review the available information in order to determine what crimes you should actually be charged with.
- If you are placed in custody, you have the right to promptly appear in court to hear the charges filed against you and enter a plea. This usually means that the prosecutor must decide within seventy-two hours which charges, if any, will be filed. A prosecutor is not bound by the initial charge decision, but may later change the crimes with which you will be charged once more evidence is obtained.
Note: The required time in which a prosecutor must make a charge decision varies from jurisdiction to jurisdiction. While many state laws require the decision to be made within seventy-two hours, other states, such as California, require that the decision be made within forty-eight hours after you are taken into custody.
- You will have an appearance in court called an arraignment at which point the charges against you will be read and you will be asked whether you plead guilty or not guilty.
Note: A third possible type of response to an indictment is that of "nolo contendere" or "no contest." Nolo contendere is not strictly a plea, but means that you do not contest the charges made by the government. The plea of nolo contendere cannot be used in other aspects of the criminal trial as an admission of guilt, but can be used only in this phase as an implied confession of the specific offense charged and an admission of the facts stated in the indictment. A plea of nolo contendere is only accepted by a judge if they feel that it is being made voluntarily and intelligently.
- If you are placed in jail, you may be able to get out prior to your trial if you "post bail." Bail is money you pay to the court in order to ensure that you will appear in court when told to do so. If you do appear as required, the bail will be refunded to you once the case against you is concluded. If you do not show up, the court keeps the money and can issue a warrant for your arrest.
- Bail may be paid in cash or in a cash equivalent. You may also be allowed, depending upon the circumstances, to post a bond. A bond is a guarantee of payment of the full bail amount should the need arise. In other situations, you may be allowed to be "released on one's own recognizance." This means that the payment of bail is waived on condition that you appear in court when required. This is generally only used in crimes that are minor in nature or where the judge is of the opinion that you are a trustworthy individual who is unlikely to flee the jurisdiction.
- Not every arrested individual is entitled to bail. In particularly heinous crimes, or where there is a risk that the defendant will flee the jurisdiction or harm members of the public, bail may be denied and the defendant will be kept in jail as a "pre-trial detainee." You may also be considered a "pre-trial detainee" if you are unable to post bail for your release.
- The judge is responsible for setting your bail. In many jurisdictions, there is a pre-set schedule listing the bail amounts for particular crimes. In other situations, bail may be determined on a case-by-case basis. The Eighth Amendment to the U.S Constitution requires that bail not be excessive.
When You Get Arrested Dos & Don'ts
The Dos
Do be polite and as courteous as possible to the police.
Do ask for the police officer's name and badge number, or read it off of his or her badge. Try to remember it. Try to get a good look at the officer's face so that you can identify him or her later by that method, if necessary.
Do, if you are arrested in your car, show the police officer your driver's license and registration information. Note that in other situations where you are not stopped in your car, you cannot be arrested for the sole reason of refusing to provide information, including your name and address, to the police.
Do, if you are taken into custody, demand the right to have an attorney present before speaking to the police.
Do ask if you are under arrest. If you are, you have the right to be told why.
Do clearly inform the police that you will not speak to them about anything without an attorney being present.
Do, as soon as you can, write down everything that happened during the course of your arrest so that you can use that writing to refresh your memory at a later date.
Do, if you are physically injured by the police during the course of your arrest, seek medical attention and inform your medical providers of the cause of your injuries. Take photographs of your injuries as soon as possible.
Do remember that you do not need to answer ANY question that the police ask of you. If you answer a question which at first seems harmless, be aware that it may later come back to haunt you.
The Don'ts
Don't offer information to the police, no matter what tactics they use.
Don't assume that the police have a search warrant just because they say that they do. If they say they have a search warrant, ask to see it.
Don't get into an argument with the police, no matter how hard they may try to bait you into losing your temper.
Don't initiate physical contact with the police, even if you mean them no harm.
Don't give them any reason to find you threatening. Do not give them the impression that you are hard to deal with or irritating.
Don't place your hands where the police cannot see them.
Don't run away from a police officer if you see one (or more) approaching you. Running away may give the police reason to suspect that you are hiding something from them, even if you are totally innocent.
Don't interfere with or obstruct the police. If you do, you can face additional criminal charges.
Don't resist arrest. Even if you think you are innocent, the time to protest comes later. If you resist arrest, you may face additional charges.
Don't allow the police to listen in on any telephone call that you make to your lawyer once you have been arrested. While the police may listen in on conversations to other individuals, they cannot listen to a conversation with your lawyer because it is protected by the attorney-client privilege.
Don't speak to the police about anything before your attorney arrives and talks to you first.
Don't provide the police with any information other than your name and address if you are arrested unless your attorney is present and approves.
Don't sign anything, no matter what it is, without an attorney being present.
Don't say anything if your attorney instructs that you remain silent. Let your attorney do the talking for you, no matter how hard it may be to resist the urge to speak.
Don't agree to participate in a line-up without your attorney being present.
Don't lie to your attorney, or to the police if you choose to talk to them.
Driving Under the Influence (DUI)
Drunk Driving/DUI - An Overview
The crime of drunk driving is also known as "driving under the influence," or DUI, and "driving while intoxicated," or DWI. In some states, the crime may be known as "operating while intoxicated, or OWI, or "operating under the influence," or OUI. The names vary according to how state law refers to or defines the crime. Whatever the name, the state laws all have a common aim of punishing those who drink and drive, or those who drive while under the influence of illegal drugs. A drunk driving conviction carries with it serious and long-lasting consequences: jail or prison time, a heavy fine, and suspension or revocation of a driver's license. A person who is facing a drunk driving charge should not hesitate to seek immediate legal counsel from an experienced drunk driving defense attorney.
Parole & Probation in Drunk Driving Cases
Parole and probation are both supervisory-type mechanisms employed in the punishment phase of the criminal justice process. Parole comes into play after a person has been imprisoned and is released. Probation, by contrast, refers to a criminal sentence separate and distinct from incarceration. Probation is the most frequent sentence imposed and typically involves releasing the convicted offender into the community subject to a list of terms and conditions. The actual terms can vary widely, based on the underlying crime, the characteristics of the offender, and the resources of the probation system. All probations are subject to a requirement that the offender refrain from committing further crimes.
Persons convicted of drunk driving may be placed on probation, or for subsequent offenses they may be given a jail or prison term and then paroled, subject to continuing supervision. Lawyers experienced in criminal defense and drunk driving law can explain the spectrum of possible punishments for drunk driving offenders and describe the differences in the possible sentences in greater detail.
The Prosecutor's Role in a Drunk Driving Case
Prosecution refers to the government's role in the criminal justice system. When criminal activity is suspected, it is often up to the government to investigate, arrest, charge, and bring the alleged offender to trial. Prosecutors are the lawyers who work for the government and who are responsible for putting on the government's case against a defendant. Prosecutors may be called county attorneys, city attorneys, or district attorneys. The prosecutor is the opponent or "adversary" of the criminal defendant and his or her attorney; the two sides go head-to-head against each other in court. Because these public attorneys focus their energies on prosecuting criminal cases, they are generally very experienced in criminal law, and it is therefore essential that the defendant's attorney have the same advantage. Thus, in order to best preserve a criminal defendant's rights and strike a fair balance in court, representation by an experienced criminal defense attorney, particularly one knowledgeable in drunk driving law, is a must.
Challenging the Reliability of Breathalyzer Test Results
In all drunk driving cases, the prosecution must prove that the defendant's blood alcohol concentration at the time of the offense was at or above a statutory limit. In many states, the limit is .10 percent, but in others it is .08, and there is a national movement afoot to make that the limit in all states. In order to prove the requisite level of alcohol in the blood of someone arrested for drunk driving, it is necessary to obtain a suitable sample of the arrestee's blood, urine, or hair at the time of arrest. The use of a breath test is by far the most popular scientific method for establishing that drunk driving has occurred. Some defendants, however, have been able to successfully challenge the results of such tests in court, thereby preventing a conviction. An attorney experienced in drunk driving defense law is in the best position to advise a client on whether the "Breathalyzer" test results may be subject to challenge in his or her particular case.
Drunk Driving and Auto Insurance
After serving the sentence and paying the fine, a person convicted of drunk driving is eager to let things get back to normal and to return to life as it was before the charges. In most parts of the U.S., normal living-school, work, other activities-usually involves driving, and driving requires automobile insurance. The worst parts of the charge may seem to be behind you, but you are then faced with yet another consequence: trying to obtain automobile insurance after a drunk driving conviction.
Youth and Violence Facts
- Guns killed 4,205 children under the age of nineteen in 1997-that's nearly twelve children each day. Of that number, 2,562 were victims of murder, 1,262 died by suicide, and 306 were victims of accidental shootings.
- The number of children killed with guns increased substantially between 1987 and 1993, whereas the numbers of other types of homicide remained constant. Between 1980 and 1997, 75 percent of all children age twelve and over who were murdered were killed with a firearm.
- Children ages twelve to seventeen are twice as likely as adults to be victims of violent crime and three times as likely to be victims of simple assault.
- Although the total number of multiple-victim school homicides has increased in recent years, the total number of school-associated violent deaths has actually decreased. A student has a less than one in 1,000,000 chance of becoming a victim of a school-associated homicide.
- A recent survey indicated that the number of high school students bringing weapons to school has declined. Sadly, however, nearly 10 percent still reported having carried a gun on school property during the previous month.
- The peak hours for violent youth crime are between 3:00 and 7:00 p.m. After school programs can serve not only to keep kids out of trouble, but also to keep law-abiding youngsters safe.
- Violent juvenile crime arrest rates have actually declined by 19 percent since 1994.
- Despite this decrease, children are increasingly being tried as adults and confined in adult jails and prisons. A recent study indicated as much as a 35 percent increase in the confinement of juveniles in adult detention centers.
- Children detained in adult jails and prisons rather than in juvenile facilities are eight times more likely to commit suicide, five times more likely to be sexually assaulted, two times more likely to be assaulted by staff, and 50 percent more likely to be attacked with a weapon.
- Although minorities make up only about one-third of the youth population, they account for about two-thirds of the juveniles committed to public facilities. Studies have shown that black youths are about twice as likely as white youths to be detained for the same offense, and that they are detained an average of two weeks longer than white youths for the same offenses.
Searches & Seizures: The Limitations of the Police
Although people in the United States are entitled to privacy and freedom from government intrusion, there is a limit to that privacy. State or federal police officers are allowed, where justified, to search your premises, car, or other property in order to look for and take illegal items, stolen goods or evidence of a crime. What rules must the police follow when engaging in these searches and seizures? What can they do in upholding the laws, and what can't they do?
What the Police MAY Do:
- Under the Fourth Amendment to the U.S. Constitution, police may engage in "reasonable" searches and seizures.
- To prove that a search is "reasonable," the police must generally show that it is more likely than not that a crime has occurred, and that if a search is conducted it is probable that they will find either stolen goods or evidence of the crime. This is called probable cause.
- In some situations, the police must first make this showing to a judge who issues a search warrant. In many special circumstances, however, the police may be able to conduct a search without a warrant. In fact, the majority of searches are "warrantless." Examples are discussed below.
- Police may search and seize items or evidence when there is no "legitimate expectation of privacy." In other words, if you did not have a privacy interest in the items or evidence, the police can take them and, in effect, no "search" has occurred.
Note: In deciding whether there was a "legitimate expectation of privacy," a court will consider two things:
- Did you have an expectation of some degree of privacy?
- Was that expectation reasonable in our society's view?
Example: You have a semi-automatic rifle that you stole from a pawnshop. You leave the rifle laying on the hood of your car when you get home. You do not have a "legitimate expectation of privacy" with regard to things you leave on the hood of your car, and the police may take the rifle. No search has occurred.
- Police may use first-hand information, or tips from an informant to justify the need to search your property. If an informant's information is used, the police must prove that the information is reliable under the circumstances.
- Once a warrant is obtained, the police may enter onto the specified area of the property and search for the items listed on the warrant.
- Police may extend the search beyond the specified area of the property or include other items in the search beyond those specified or listed in the warrant if it is necessary to:
- Ensure their safety or the safety of others;
- Prevent the destruction of evidence;
- Discover more about possible evidence or stolen items that are in plain view; or
- Hunt for evidence or stolen items that, based upon their initial search of the specified area, they believe may be in a different location on the property.
Example: The police have a warrant to search your basement for evidence of a drug manufacturing operation. On their way through your house to go down to the basement, they see a cache of guns sitting on the kitchen table. They may take the guns in order to ensure their safety while searching your basement.
Permissible Searches Without a Warrant
- Police may search your property without a warrant if you consent to the search. Consent must be freely and voluntarily given, and you cannot be coerced or tricked into giving it.
- Police may search your person and the immediate surroundings without a warrant when they are placing you under arrest.
- If a person is arrested in a residence, police may make a "protective sweep" of the residence in order to make a "cursory visual inspection" of places where an accomplice may be hiding. In order to do so, the police must have a reasonable belief that an accomplice may be around.
Example: The police arrest you in your living room on charges of murder. They may open the door of your coat closet to make sure that no one else is hiding there, but may not open your medicine cabinet because an accomplice could not hide there.
- When you are being taken to jail, police may perform an "inventory search" of items you have with you without a warrant. This search may include your car if it is being held by the police in order to make a list of all items inside.
- Police may search without a warrant if they reasonably fear for their safety or for the public's safety.
Example: If the police drive past your house on a regular patrol of the neighborhood and see you, in your open garage, with ten cases of dynamite and a blowtorch, they may search your garage without a warrant.
- If it's necessary to prevent the imminent destruction of evidence, the police may search without a warrant.
Example: If the police see you trying to burn a stack of money that you stole from a bank, they may perform a search without a warrant to prevent you from further destroying the money.
- Police may perform a search, without a warrant, if they are in "hot pursuit" of a suspect who enters a private dwelling or area after fleeing the scene of a crime.
Example: If the police are chasing you from the scene of a murder, and you run into your apartment in an attempt to get away from them, they may follow you into the apartment and search the area without a warrant.
- Police may perform a pat-down of your outer clothing, in what is called a "stop and frisk" situation, as long as they reasonably believe that you may be concealing a weapon and they fear for their safety.
What the Police MAY NOT Do:
- The police may not perform a warrantless search anywhere you have a reasonable expectation of privacy, unless one of the warrant exceptions applies.
- If evidence was obtained through an unreasonable or illegal search, the police may not use it against you in a trial. This is called the "exclusionary rule."
- The police may not use evidence resulting from an illegal search to find other evidence.
- The police may not submit an affidavit in support of obtaining a search warrant if they did not have a reasonable belief in the truth of the statements in the affidavit.
- Unless there is a reasonable suspicion that it contains evidence, illegal items, or stolen goods, the police may not search your vehicle. If your car has been confiscated by the police, however, they may search it.
- Unless they have a reasonable suspicion that you are involved in a criminal activity, the police may not "stop and frisk" you. If they have a reasonable suspicion, they may pat down your outer clothing if they are concerned that you might be concealing a weapon.
Understanding Bail and Bonds
If you are arrested for a crime, the judge will usually set what is called "bail." Bail is sometimes set, per a schedule, immediately after you are booked for a crime. For more serious crimes, bail may not be set until your arraignment, which is the court date where the charges are read against you and you enter your plea. Bail is the amount of money you are required to pay in order to be able to leave jail during the period between your arraignment and trial. In some cases the judge may deny you any bail, meaning that you will have to stay in jail to await your criminal trial. For example, individuals who commit particularly reprehensible crimes or who are considered to be a high flight risk may be denied bail. In most situations, you are not required to pay the full bail amount, but are instead allowed to post a portion of it, as a "bond." The bond is your promise that you will show up for all required court appearances. There are many different ways in which bond can be posted. The following is a primer on some of those ways.
A Note About Bail Agents
- Bail agents are a unique participant in criminal proceedings. Bail agents generally must have a special license to supply bail bonds and, in some cases, must also carry special insurance policies on their business.
- A bail agent's duty is to assist a criminally accused party and their friends and family in attempting to obtain the release of the accused party. A bail agent must also assure the accused party's attendance at any subsequent court appearances.
- Once a release is obtained, the bail agent should verify that the accused individual has actually attended all necessary court proceedings. If the accused fails to appear, the bail agent should try to help locate and return him or her for trial. To accomplish this, a bail agent may hire a bounty hunter to locate the accused party.
- A bail agent may need to be present in court, if required or requested, in order to provide information on the bail bond.
Cash Bonds
- How does a cash bond work? A cash bond requires the full bail amount and is not financed through a bail agent. The court will hold onto the full bail amount until your criminal case is concluded. At that point, the bail is returned to you.
- Who can post a cash bond? You, your family, or your friends can post a cash bond.
- What happens if I fail to appear in court? The full bail amount will be forfeited to the court if you fail to appear for your trial. The court will then issue a warrant for your arrest.
- Are there special requirements? If you have been arrested on charges of drug trafficking, you must prove that your bail money is coming from non-drug revenue sources before the court will accept it.
Federal Bonds
- When is a federal bond used? A federal bond is required for crimes being tried in federal U.S. district courts.
- How much is a federal bond? There is no set schedule, or limit, on the amount of bail that may be set for a federal crime. Therefore, the amount of your federal bond will depend on the facts of your particular case and the attitude of the judge who sets your bail.
- How does a federal bond work? A federal bond works like any other type of bail bond and serves to guarantee that you'll appear at all required court proceedings.
- Who can provide a federal bond? Unlike a cash bond, a bail agent may provide a federal bond.
- What happens if I fail to appear in court? If you fail to appear at any scheduled court proceeding where your presence is required, your bond will be forfeited to the federal court.
Immigration Bonds
- When is an immigration bond used? Immigration bonds are used solely in cases involving immigration issues.
- Who receives an immigration bond? An immigration bond is posted with the U.S. Immigration and Naturalization Service, instead of with a traditional court.
- Who can provide an immigration bond? Not every bail agent can provide an immigration bond. Immigration bonds can only be provided by bail agents who carry a special insurance license.
- What happens if I fail to appear in court? As with "regular" bonds, if a person who has posted an immigration bond fails to appear in court, the bond will be immediately forfeited to the court.
Property Bonds
- What is a property bond? A property bond is a bond that posts the value of tangible property, such as real estate, in order to obtain a pre-trial release from jail. In some cases, the value of the property may need to be twice as high as the bail amount in order for a property bond to be accepted. A property bond is not allowed in every state.
- How is a property bond obtained? A property bond may be obtained from a bail agent. Depending on the law of the particular state, a court-appointed appraiser may need to asses the value of the property being used to post the bond. In other states, the value of the property as declared on tax documents may be considered adequate proof of its worth.
- What happens if more than one person owns the property? If the warranty deed or tax statement relating to the property indicates that there is more than one owner, then each owner must sign an agreement indicating that the property may be used to finance a bond.
- What happens if I fail to appear in court? When a property bond is issued, the court secures a lien against the property for the amount of the bail. If you fail to appear in court, a foreclosure action may be brought against the property. The court may then, after the foreclosure proceeding, collect on the bail amount that is owed. The court may also seek to recover, from the accused, the difference between any amount received in the foreclosure sale and the amount of the bail that was secured by the property.
Surety Bonds
- What is a surety bond? A surety bond is, in essence, a series of contracts with a bail agent for the total bail amount.
- How does a bail agent decide if I can have a surety bond? Bail agents are allowed to interview both the accused person and the guarantor of the bond so that they may make a determination as to whether the accused is likely to show up for court appearances. Depending on the opinion of the bail agent, the contracts for the surety bond can also contain conditions, such as the requirement that the accused obtain treatment or counseling once the release is secured. In this way, the bail agent can assume an important role in the accused's life.
- How is a surety bond written? A surety bond is usually written for a premium percentage of the full bail amount. Collateral provided by the guarantor of the bond is then used to secure the remaining amount.
- What happens if I fail to appear in court? With a surety bond, the bond agent becomes liable to the court for the full bail amount in the event the accused fails to appear in court. Hence, the need for the bail agent to interview the accused and develop an opinion as to his or her flight risk.
- How does a bail agent guarantee a surety bond? Bail agents generally use the assets and property of their business to guarantee the surety bond to the court.