FAQ

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What Are My Rights:

Q: What Are My Rights With The Police?

A1. Miranda Rights: What are the “Miranda” Rights? In 1966, the U.S. Supreme Court decided the historic case of Miranda v. Arizona, declaring that whenever a person is taken into police custody, and before being questioned he or she must be told of the Fifth Amendment right not to make any self-incriminating statements. The Miranda Rights are as follows: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney before or during questioning. If you cannot afford an attorney, one will be appointed for you.

Q: What if the Police Fail to Advise Me of My Miranda Rights?

When police officers fails to give Miranda warning to you your case is not dismissed. However, whenever a police officer questions a suspect in custody, any statement or confession made is presumed to be involuntary, and cannot be used against the suspect in any criminal case. In summary, your confession will be thrown out. Any evidence discovered as a result of that statement or confession will also likely be thrown out.

A2. The Right to Counsel  A criminal defendant’s right to an attorney is found in the Sixth Amendment to the U.S. Constitution, which requires the “assistance of counsel” for the accused “in all criminal prosecutions.” This means that a defendant has a constitutional right to be represented by an attorney during trial. Additionally, a suspect has the right to a lawyer at almost every important phase of the criminal process, typically from arrest through the first appeal after conviction. An attorney is to advise the defendant of his or her rights and explaining what to expect at different stages of the criminal process, ensure that the defendant’s constitutional rights are not violated through law enforcement conduct, or in court proceedings, to negotiate for the best plea bargain he or she is able to with the government, investigate the facts and evidence, cross-examining the State’s witnesses, object to improper questions and evidence, and present any legal defenses. An attorney must meet a certain level of competency which is referred to as “effective assistance of counsel.”)

A3. The Right to be free from Unreasonable Searches & Seizures. The Fourth Amendment to the U.S. Constitution protects your privacy. Every person has a right to be free from unreasonable government intrusion into their persons, homes, businesses, and property. Unreasonable government intrusion includes when an officer illegally and without proper justification apprehends or seizes a person by stop or arrest and also when an officer illegally and without proper justification searches a place or items that a person has an expectation of privacy in. The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence against a Defendant in criminal cases. The Fourth Amendment applies when a person is stopped for questioning, a person is pulled over for a traffic infraction, a person or vehicle of a person is searched as a result of the traffic stop, a person is arrested. The Fourth Amendment also applies when an officer places a person under arrest, an officer confiscates a person’s property, or when an officer searches a person or the person’s property. Generally, in most instances, a police officer may not search or seize an individual or his or her property unless the officer has: a valid search warrant; a valid arrest warrant; or a belief rising to the level of “probable cause” that an individual has committed, is about to commit or is committing a crime. When law enforcement officers violate an individual’s constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated.)

Q: What Other Rights Do I Have?

A1. 5th Amendment, Right To Remain Silent. To “Plead the Fifth” means to remain silent. The Fifth Amendment to the U.S. Constitution gives an individual who becomes a suspect or a Defendant the right to refuse to answer any questions or make any statements. The right to remain silent or not to testify is a right that solely belongs to the Defendant. An attorney cannot tell a Defendant to take or not to take the stand and testify on his or her own behalf. An attorney can only advise the Defendant what she or he thinks is in the Defendant’s the best interest. When a defendant exercises his or her right not to testify, the jury is not permitted to take that refusal into consideration when deciding whether the defendant is guilty of the crime(s) charged. If a Defendant does chose to take the stand, he or she waives his right to the Fifth Amendment and must answer all questions posed to him or her on the stand. The Fifth Amendment Right to Remain Silent only applies to testimony and not to evidence. Therefore, the Right to Remain Silent does not ensure that evidence such as a finger print match or DNA comparison won’t be used against the Defendant.)

A2. 6th Amendment, Right to Speedy Fair & Impartial Jury Trial. The Sixth Amendment to the U.S. Constitution guarantees a criminal Defendant the right to counsel discussed above as well as the right to a speedy trial by an impartial jury of his or her peers. A “speedy” trial basically means that the defendant is tried for the alleged crimes within a reasonable time after being arrested. Although most states have laws that set forth the time in which a trial must take place after charges are filed, often the issue of whether or not a trial is in fact “speedy” enough under the Sixth Amendment comes down to the circumstances of the case itself, and the reasons for any delays. In the most extreme and rare situations, when a court determines that the delay between arrest and trial was unreasonable and prejudicial to the defendant, the court dismisses the case altogether. An impartial jury is a jury that consists of a cross-section of the community, which will consider the evidence against the defendant and decide whether to find him or her guilty of the crime(s) charged. In Florida, between 6-12 jurors must agree in order to find a defendant “guilty” or “not guilty.” If the jury fails to reach a unanimous verdict and finds itself at a standstill (a “hung” jury), the judge may declare a “mistrial,” after which the case may be dismissed or the trial may start all over again with a new jury.

A3. The Right to be Free From Double Jeopardy. “Double Jeopardy” protections in the U.S. Constitution keep criminal defendants from facing prosecution more than once for the same offense. “No person shall … be subject for the same offence to be twice put in jeopardy of life or limb.” This right is not an exclusive right and has a few exceptions. A person can be charged in Federal and State court for the same set of facts for same or different charges. Most state constitutions also guarantee this right to defendants appearing in state court. Even in states that do not expressly guarantee this right in their laws, the protection against double jeopardy must still be afforded to criminal defendants because the Fifth Amendment’s Double Jeopardy Clause has been made applicable to state proceedings. The right to be free from double jeopardy was established to prevent the government from using its resources to wear down and erroneously convict innocent people, to protect individuals from the financial, emotional, and social hardship of successive prosecutions, to preserve the finality of the criminal proceedings and jury’s findings, to limit prosecutorial discretion over the charging process, and to eliminate judicial discretion to impose cumulative punishments for same crimes.

Q: I Got Arrested for DUI, Now What?

A1. TOPIC – Driver’s License Issue

If you refused you must undergo a 30 day “hard” suspension where you do not have a driver’s license or permit of any kind.

-For ten days, you may drive using your DUI citation as a temporary license.
-Within 10 days, you or your attorney, must request an administrative review hearing to attempt to get your license back or you waive your right to an administrative review hearing. While awaiting for your administrative review hearing you may request and receive a temporary driving permit.
-An administrative review hearing is a hearing at the DMV where the record is reviewed and sometimes testimony of the arresting DUI officer to determine if there was probable cause that you were actually impaired for DUI. If it is determined that there was no probable cause of impairment, the DUI suspension on your license is lifted.
-If you do not win you Administrative Review Hearing, you should apply for DUI school, complete DUI school and apply for a hardship license. A hardship license allows you to drive for work purposes.

A2. TOPIC- Criminal Case

Arraignment where you please not guilty or guilty to charges against you. We plead you not guilty at arraignment to review all the evidence against you to determine what is in your best interest. You can always plead to a charge at a later court date.
-Review the evidence against you with your attorney. In a DUI case there often times will be a video of field sobriety exercises on the side of the road such as the walk and turn and one legged stand. In DUI cases there often times will be a breath alcohol content result.
-Attorney will negotiate for best offer
-Weigh offer and risk of trial
-Either take the offer or go to trial

A3. TOPIC- Minimum Sentence Required By Statute for DUI

If you are convicted of a DUI, the law of Florida requires that it be for a 12 month period
with certain minimum requirements including a 6 month driver’s license revocation, DUI school, a fine, 50 community service hours, 10 day vehicle impound, and vehicle impact panel.

A4. TOPIC- Benefits of getting reduced charge of Reckless Driving

A charge of reckless driving does not require a driver’s license suspension, and your car insurance will not increase as much as it would if you are convicted of a DUI. A charge of reckless driving is an infraction whereas a DUI is a misdemeanor

Q: Stages of Every Criminal Case?

A: Arrest- Your taken into custody

Booking & Bail- Your booked into the jail and given an amount of bond that you may pay to be released from jail.

Arraignment- First formal court hearing where you are formally read the charges against you and asked to make plead guilty or not guilty.

Plea Bargain- Your attorney will negotiate for the best offer. You may accept, or reject the offer. If you reject the offer you may plead guilty to the judge and allow him or her to sentence you or you may go to trial.

Preliminary Hearing- This is the hearing right before going to trial where all the evidence is finalized against you. Both sides must give the evidence they intend to use to the other side prior to the preliminary hearing.
Pre-Trial Motions- The pre-trial motions are heard at specially set hearings. Pre-trial motions are used to determine what evidence will be suppressed or presented to the jury or fact finder. Sometimes, a motion could win your entire case. Examples of pre-trial motions include, Motions to Dismiss and Motions to Suppress.

Trial-

Jury – Please see the rights section for the Right to a Fair and Impartial Jury for more information.

Non-Jury- A person facing criminal charges can elect to have a judge instead of a jury hear the evidence and give a verdict.

Sentencing- If your found guilty by judge or jury or if you plead guilty you will be sentenced. Sentencing can happen at the same time as a plea or verdict or it can be specially set. In Florida when a jury finds you guilty, a judge will sentence you. If you are found not guilty, no sentence is imposed. If you plead guilty to a negotiated plea agreement, the judge still sentences you to the agreement and if the judge does not approve of the agreement, he or she has the right to refuse the plea negotiations. If you plead guilty to the judge, then of course, you may provide mitigation and request a certain sentence, but again, the judge will sentence you.

Appeals- If there is a legal issue to appeal to the higher court you must notify the court within 30 days of your intent to appeal. The appeal process takes between 12-18 months. The transcript is prepared, you will hire an attorney or one will be appointed for the appeal process, the attorney will write a brief on your behalf outlining the legal problems that happened during your case, the Attorney General will write a response brief and the Court of Appeals will make a ruling as to whether your conviction stands.