Criminal Law FAQ’s

Criminal Law

WHAT IS THE DIFFERENCE BETWEEN A NOTICE TO APPEAR AND BEING ARRESTED?

For some misdemeanor offenses (petit theft, traffic offenses, and possession of marijuana), an officer may choose to give you a NOTICE TO APPEAR rather than arrest you and bring you to jail. If you are ARRESTED, you are handcuffed, taken to Orient Road Jail, booked into the jail, and given a bond. In order to get out of jail, you will need to post a bond in order to insure that you will appear at your future Court hearing(s). If you are given a NOTICE TO APPEAR by the officer, the paper will notify you of your future court date, you are not handcuffed and not booked into jail. You are free to go. But you must still appear at your Court hearing. If you fail to appear, a warrant will be issued for your arrest. YOU SHOULD ALWAYS ASK THE OFFICER FOR A NOTICE TO APPEAR RATHER THAN BE ARRESTED.

WHAT IS A BOND? AND HOW DO I GET OUT OF JAIL?

The bond is used to insure you will appear at each and every Court hearing until the case is fully resolved. Each crime usually has a standard bond amount that attaches once you are booked into jail. In order to be released from jail, you need to post that bond amount. The more serious the crime, the higher the bond amount. Some crimes (domestic violence battery, violent crimes, sex crimes, and certain drug trafficking crimes) have NO BOND and you must stay in jail until your case is heard by a Judge.

When you are booked in jail, you will be told your bond amount. If you want to get out of jail, you have two options:

Option 1: Have a friend or family member (“depositor”) come to Orient Road Jail with the full amount in cash. This is called a “cash bond”. You will be released from jail – although it may take many hours to be processed through the system. If you appear at all court hearings (unless your attorney appears on your behalf), the depositor will get the cash bond returned to them once the case is finished in Court. HOWEVER, if you are found guilty of the crime, the Court may order you to pay court costs out of the posted cash bond amount. If so, the remaining balance will be returned to the depositor.
Option 2: You, a friend or family member can hire a bondsman. Typically, the depositor will give the bondsman 10% of the total bond amount (called “the juice”). This “juice” will not be returned to the depositor but is considered the bondsman’s fee. In addition to the “juice”, the depositor will have to come up with collateral equal to the 90% remaining balance. The collateral may be a title to a car, house, jewelry, etc. Once your court case is finished, and you appear at all the court hearings, then the collateral is returned to the depositor. If you fail to appear at the Court hearing, then the collateral can be kept by the bondsman.

WHAT IS A DIVERSION PROGRAM? DO I QUALIFY?

For felony offenses, the diversion program is called PRE-TRIAL INTERVENTION (PTI). This program is a tremendous opportunity for first time offenders because if you successfully complete the program, the criminal charges are DISMISSED against you.

  • PTI is available at the sole discretion of the State Attorney’s Office and usually requires the victim to agree.
  • The program requires you to appear at the PTI officer’s office once per month to show proof of compliance with the PTI requirements.
  • These requirements may include: community service hourse, drug and alcohol evaluation and treatment, random urine screens, paying restitution to the victim, letter(s) of apology, etc. The requirements vary with the type of offense and tailored to meet the particular facts of your case.
  • The program is 9-18 months long.
  • After successfully completing the program, the charges against you are DISMISSED and you may be eligible to have the charges expunged from your record.
  • HOWEVER, if you violate the terms of the PTI program or are arrested with a new criminal charge, you will be expelled from the program and the court case will restart against you from the beginning.
  • To qualify for PTI, you cannot have any prior felony charges against you. You cannot have too many prior misdemeanor charges against you.

For misdemeanor charges, the diversion program is called MISDEMEANOR INTERVENTION PROGRAM (MIP). Like PTI, this program is a tremendous opportunity for first-time offenders because after you successfully complete the program, the criminal charges are DISMISSED against you.

  • MIP is available at the sole discretion of the State Attorney’s Office and usually requires the victim to agree.
  • The program requires you to appear at the MIP officer’s office once per month to show proof of compliance with the MIP requirements.
  • These requirements may include: community service hourse, drug and alcohol evaluation and treatment, random urine screens, paying restitution to the victim, letter(s) of apology, etc. The requirements vary with the type of offense and can be tailored to fit the particular facts of your case.
  • The program is typically 3-6 months long.
  • After successfully completing the program, the charges against you are DISMISSED and you may be eligible to have the charges expunged from your record.
  • HOWEVER, if you violate the terms of the MIP program or are arrested with a new criminal charge, you will be expelled from the program and the court case will restart against you from the beginning.
  • To qualify for MIP, you cannot have any prior misdemeanor or felony charges against you.

WHAT IF I WASN’T READ MY MIRANDA RIGHTS?

Miranda Rights are:  1.) You have the right to remain silent.  2.) Anything you say can and will be used against you.  3.) You have the right to an attorney before and during any interrogation.  4.) If you cannot afford an attorney, you have the right to have an attorney appointed to you before and during any questioning.

  • Miranda Rights apply only when a person is detained by the police or a person is not free to leave AND, the person is being asked questions by the police which may result in an incriminating response.
  • A person who is accused of committing a crime by law enforcement must be read his/her Miranda Rights before he/she can be subjected to a custodial interrogation.
  • You can be arrested and NEVER read your Miranda Rights.
  • If you are detained and the officer wants to question you about the crime, the police officer must first read you your Miranda Rights.
  • If you are detained and questioned without Miranda Rights, the criminal case usually will not be dismissed. But, the statements you made without the Miranda Rights may be suppressed and not allowed to be used against you.

 

WHAT IS THE DIFFERENCE BETWEEN PLEADING NOT GUILTY, GUILTY, OR NO-CONTEST?

There are three types of pleas:

  • NOT GUILTY: means you formally deny committing the crime of which you are accused. If you plea Not Guilty, your case will proceed towards a trial where the State must prove you guilty of the crime. You can change this plea at any time during the course of the Court case.
  • GUILTY: means you formally admit to committing the crime of which you are accused.
  • NO-CONTEST: means you do not admit to committing the crime nor do you deny committing the crime. Rather, you admit that the STate can prove the case against you.
For sentencing purposes, either a plea of Guilty or No-Contest will result in the same sentence.

WHAT IS THE DIFFERENCE BETWEEN ADJUDICATION OF GUILT AND A WITHHOLD OF ADJUDICATION OF GUILT?

In Florida, a person who pleads guilty or no-contest to a criminal charge or who goes to trial and is found guilty of a criminal charge will be sentenced by a Judge. The Judge can sentence someone to an ADJUDICATION OF GUILT or the Judge can WITHHOLD ADJUDICATION OF GUILT.

If the Judge adjudicates you guilty, it means you have been formally found guilty of the crime and you are convicted of the crime. For both misdemeanor and felony convictions, this will be on your permanent record. For felony charges, you will be a convicted felon and face many restrictions of your liberties (i.e. unable to vote, possess firearms, denied certain employment, etc). You must be convicted in order to be sentenced to jail or prison time. Additionally:

  • If you are convicted of a drug offense, the Department of Highway Safety and Motor Vehicles (DHSMV) may suspend your driver’s license for two years.
  • If you plea guilty, no contest, or are found guilty by a jury of a DUI, you must be ADJUDICATED GUILTY.
  • If you are adjudicated guilty of any crime, you are not eligible to have that crime or any other crime (prior or subsequent) sealed or expunged from your record.

If the Judge withholds adjudication of guilt, it means you have not been formally found guilty of the crime and there is no conviction. It is possible to plea guilty to a crime but still receive a withhold of adjudication and thus, not be convicted of the crime. However, for punishment, the Judge can still order you to probation or other sanctions.

  • If you receive a withhold of adjudication of guilt, you can lawfully deny being convicted of a crime.
  • You may also be eligible to have your criminal record sealed.

THERE ARE 5 WAYS A CRIMINAL CASE IS RESOLVED IN STATE COURT.

There are 1 of 5 ways a criminal case is resolved in State Court.

  1. Nolle Prosse (State Attorney’s Office drops the criminal charge): Andrew will always evaluate a case and first determine whether this Nolle Prosse option is available. This means a careful review of the facts, the client’s background and history, and the strengths and weaknesses of the case. If it is a viable option, Andrew will work to convince the prosecutor that the case should be dropped against his client.
  2. Diversion Program: First time offenders may be eligible to enter a pretrial diversion program as a way to resolve their case. These programs are available at the discretion of the State Attorney’s Office and not the Judge. These programs are available for some felony, misdemeanor, juvenile and even some traffic offenses (NOT DUI). The beauty of these programs is that a client does NOT have to admit guilt in order to be allowed in the program. Once the client successfully completes the diversion program, the case is dismissed. Later, the client may be eligible to have the criminal record expunged.
  3. Motion Practice: While reviewing a client’s case, Andrew may determine that an appropriate motion can resolve the case in his client’s best interests. For example, a Motion to Suppress illegally obtained evidence may result in some or all of the evidence being inadmissible, thereby weakening the State’s case or resulting in the case being dropped. Similarly, a Motion to Dismiss may result in a full dismissal of the case. Andrew has successfully argued a wide variety of these motions before the Courts. It is critical to have an attorney like Andrew who is up to date with the constantly changing laws and court rulings in criminal trial law.
  4. Plea bargain: A plea bargain is the most common way a case is resolved. The job of a good defense attorney is to show the prosecutor the weaknesses of the State’s case in order to obtain a favorable plea offer for their client. Andrew will thoroughly dissect a case and present the weaknesses to the Prosecutor. A plea offer may include a reduced charge, probation instead of incarceration, or a greatly reduced period of incarceration. Andrew will work hard to obtain the best offer for his client. With the State’s offer in hand, Andrew will discuss the case, the offer, the consequences of accepting or rejecting the offer, and other options.
  5. Trial: A trial is when you assert your innocence and you demand your right to a public trial. At trial, 6 members of the public (jury) will hear the evidence and decide if you are innocent or guilty of the charges. Before you decide to proceed with a trial, Andrew will meet with you and have an in-depth discussion about all aspects of the case. Andrew will discuss the consequences such a trial may have on the client, the client’s family, job, and personal life. Andrew will give his expert opinion on the likelihood of success at trial and the possible consequences if you are found guilty.

Seal & Expunge

IF MY CRIMINAL RECORDS ARE SEALED OR EXPUNGED, CAN I DENY BEING ARRESTED OR HAVING A CRIMINAL RECORD?

After a record is SEALED, the petitioner may lawfully deny the arrest and the court case for the offense. HOWEVER, he/she must still disclose the sealed record in specific situations listed in Florida Statutes 943.059.

Similarly, when a record is EXPUNGED, the petitioner may deny the arrest and the court case BUT must still disclose the expunged record in specific situations listed in Florida Statutes 943.0585.

SEAL vs. EXPUNGE – WHAT’S THE DIFFERENCE?

EXPUNGMENT: A record expungment is when the criminal record is destroyed. If the Court grants an expungment of a record, the State Attorney’s file, the arresting agency’s reports and files, the Clerk of Court’s records, and the jail records are all destroyed. Under an expungment, a petitioner’s photograph is removed from the county jail’s website and all information is removed from the Clerk of Court’s website.

A person is eligible to apply for an expungement ONLY in the following circumstances:

  • Applicant was arrested but never formally charged by the State Attorney’s Office.
  • Applicant was arrested and formally charged, but the charge was later dismissed or “nolle prossed” (dropped) in Court.
  • Applicant was arrested, charged, but entered into and successfully completed a pre-trial diversion program (i.e. PTI or MIP), which ultimately resulted in the case being dismissed by the Court.

In all of the above three scenarios, the applicant must have no prior Adjudications of Guilt.

SEAL: A record which is Sealed by the Court is not destroyed but placed in an envelope and sealed. The envelope cannot be legally opened without a Court order. If a record is sealed, a petitioner’s photograph is removed from the county jail’s website. The Clerk of Court’s file is also sealed and all information about the case is removed from the Clerk of Court’s website.

A person is eligible to apply for a sealing ONLY in the following circumstances:

  • Petitioner was arrested, formally charged, pled guilty or no contest to the charge and was sentenced to a WITHHOLD OF ADJUDICATION OF GUILT by the Court.
  • If the Petitioner receives a Withhold of Adjudication and is sentenced to probation by the Court – and successfully completes the probation, the petitioner may seek to have that record SEALED.
  • However, there are certain offenses that are never allowed to be sealed, even if the applicant received a withhold of adjudication. Some of these offenses include sexual offenses, offenses against children, or other violent offenses.

CAN THE COURT DENY MY PETITION FOR SEAL/EXPUNGE?

Yes, the Court can deny a petition but it is very rare.

HOW LONG DOES THE SEAL/EXPUNGE PROCESS TAKE?

The FDLE (Florida Department of Law Enforcement) processes all Petitions for sealing or expunging records. Due to their time constraints, the current processing time is approximately four (4) to six (6) months.

UNDER FLORIDA LAW, AM I ELIGIBLE TO HAVE MY RECORD SEALED OR EXPUNGED?

A petitioner cannot have a prior ADJUDICATION OF GUILT on his/her criminal record. This includes the charge the petitioner is seeking to have sealed/expunged as well as any other prior criminal charge. If a petitioner has ever been adjudicated guilty of any offense – including many criminal traffic offenses (i.e. DUI, DWLS), then the petitioner is INELIGIBLE to ever apply to have a record sealed or expunged.!

DUI

CAN I GET MY DUI CHARGE REDUCED OR DISMISSED?

Of course the goal in all criminal cases is to have the Court dismiss or the State nolle prosse (drop) the case. Andrew will explore these options and he will advocate for this resolution when appropriate. However, if the State will not drop the case, Andrew will try to convince the State to reduce the criminal DUI charge to a less serious charge of Reckless Driving. There are significant benefits to getting a DUI charge reduced to reckless driving including but not limited to lesser criminal punishments, no court ordered license suspensions, reduced court costs, and (possible) lower insurance ramifications.

Even if Andrew convinces the State to reduce the DUI charge to a lesser Reckless Driving charge, it does NOT mean you must accept the offer. Andrew will meet with you and carefully discuss your available options and what is in your best interests for both the short and long term. He will go over the State’s offer, the consequences of rejecting the offer, the likelihood of success at trial, as well as other alternatives. Ultimately, after hearing Andrew’s expert advice, YOU will make the decision on how to proceed with your case.

WHAT ARE SOME OF THE DUI ISSUES THAT ANDREW WILL REVIEW?

Did the officer have a valid legal reason to pull you over?

  • An officer can pull you over if you have violated a traffic law (speeding, red light, failure to maintain a single lane, careless driving, etc.)
  • An officer can make a traffic stop if the officer observing your driving pattern, has a well founded suspicion that the driver is either ill, injured, impaired, or the car is having mechanical problems. An officer must be able to articulate what factors were present that justified the stop.
  • At times, an officer can make a traffic stop based on an anonymous tip from a citizen.

 

Did the officer have sufficient reasonable suspicion to continue to detain the DUI suspect and ask them to perform FSEs?

This is a very fact specific argument. Andrew will have an in depth discussion with you, other witnesses, and review all the evidence – including the DUI video in order to ascertain whether law enforcement had reasonable suspicion to detain you.

THIS IS MY FIRST DUI. ARE THERE MANDATORY PUNISHMENTS FOR DUI?

There are certain minimum mandatory punishments for ALL FIRST TIME offenders convicted of DUI.

ADJUDICATION OF GUILT: This is a conviction for a misdemeanor DUI charge and cannot be sealed or expunged off your record.

TWELVE (12) MONTHS PROBATION, INCLUDING

  • pay a $500 fine
  • pay approximately $480 in court costs
  • complete DUI School: 12 hour in-person DUI class followed by an evaluation for alcohol and substance abuse and completing any recommended treatment
  • perform 50 hours of community service.
  • six (6) month Court ordered driving revocation, and
  • a 10 day immobilization of your vehicle

If you complete the terms of your probation, you may ask the Court to terminate your probation earlier than the 12 month term.

The MAXIMUM penalty if convicted of DUI is up to 180 days in jail for a first offender, and if a crash occurred, up to 364 days in jail. If you have prior DUI convictions, or if your breath sample was over 0.15, you will face enhanced punishments.

TO BLOW OR NOT TO BLOW. WHAT IF I REFUSE TO BLOW, REFUSE TO GIVE A BREATH SAMPLE?

If you refuse to provide a breath sample, you limit the State’s evidence against you by not giving them a breath alcohol number to use against you in Court. However, if you refuse to provide a breath sample, the DHSMV will seek to suspend your driver’s license for up to one year for a first refusal or 18 months if you have previously refused.

CAN I BE UN-ARRESTED IF MY BREATH ALCOHOL CONTENT (BAC) LEVEL IS LESS THAN .08?

The State of Florida presumes you are impaired if you blow over 0.08. However, even if you blow under this limit, you will NOT be un-arrested. You can be DUI even if you blow under the legal limit. Conversely, if you blow over the legal limit, you are not automatically guilty of DUI.

WHY WAS I WAS ARRESTED FOR DUI? WHAT ARE THE “CLUES OF IMPAIRMENT”?

In prosecuting DUI cases, the State of Florida focuses on certain factors or clues to try and prove a person is DUI. There is no one factor that establishes a person is DUI, but rather law enforcement looks to observe and identify as many factors as possible when investigating a DUI. Some factors or clues are:

Driving: Did you swerve, drive erratically, cause an accident, fall asleep at the wheel, fail to stop at a stop sign, etc. The State will rely on driving indicators of impairment to try and build a DUI case against you.

Appearance and Behavior: Once stopped, the officer will examine how you looked, acted, and behaved. Do you have bloodshot and/or glassy eyes, slurred speech, and/or lethargic movements? Are you giving inappropriate answers? Do you look disheveled? An officer will note if the suspect can produce the necessary documents – driver’s license, proof of registration, and insurance in a timely and coordinated manner.

Statements: Nothing is more damaging to your defense than your own incriminating statements (i.e.admitting that you drank alcohol, the amount of alcohol you drank, and that you are impaired by the alcohol). YOU HAVE AN ABSOLUTE RIGHT TO REMAIN SILENT. You do not need to answer the officer’s questions. Although, your silence may make the officer angry, it will protect you by not giving the officer and the prosecutor additional evidence to use against you later in Court.

Field Sobriety Exercises (FSE): If the officer suspects you of being DUI, you will be asked to perform the FSEs to “dispel” the officer’s opinion that you may be impaired. However, it is virtually impossible to successfully complete all the FSEs. YOU HAVE THE RIGHT TO REFUSE TO PERFORM THE FSEs. Although the officer will say that your refusal will be held against you in court, if you perform poorly this will have a devastating impact on your case.

I WAS ARRESTED AND CHARGED WITH DUI. HOW CAN I GET A HARDSHIP DRIVER’S LICENSE?

  • If you have a prior DHSMV DUI administrative suspension from Florida or another State for an unlawful breath result or for a refusal to blow, then you are INELIGIBLE to immediately get the hardship license.
  • If you have a prior criminal DUI Court suspension from Florida or another State, then you are INELIGIBLE to immediately get the hardship license.
  • If you have a prior DHSMV administrative suspension for an unlawful underage breath alcohol result, then you are INELIGIBLE to immediately get a hardship license.
  • If INELIGIBLE, you may challenge the administrative suspension and obtain a 42 day temporary business purposes only driving permit. Andrew will represent you at the administrative suspension hearing.

 

If you are Eligible, the following is the process to obtain an immediate hardship license:

  • Within 10 days of your arrest, you must enroll in DUI School (pay the full $276.50 fee) and have proof of payment (copy of receipt). Online information is here www.drivesafetampa.org (Hillsborough) or www.Safety.org (Pinellas).
  • Within 10 days of your arrest, you must goto the Bureau of Administrative Reviews office and complete the Waiver form. Hillsborough County; 2814 East Hillsborough Avenue, Tampa, Florida 33610, (813) 276-5795. Pinellas County 4585 140th Ave North, Suite 1002, Clearwater, Florida 33762, (727) 507-4405.
  • You must pay a $25 hardship hearing fee at the Bureau of Administrative Reviews and in order have a hardship hearing. At the hearing, attorney’s are not permitted, you may be asked why you need a hardship license (work, school, medical, and religious necessity) and if in the future you are arrested for a DUI will you blow or refuse. (You will provide a breath sample.)
  • After the hardship hearing at the Bureau of Administrative Review, you will be directed to the driver’s license office in the building behind the hearing office (Hillsborough County) to provide the required citizenship documentation. To see a list of approved documents go to www.gathergoget.com and pay the approximate $225 in fees to re-instate your driving privileges.
  • You will receive a new driver’s license with the business purposes only restriction. The DHSMV website will show you have a valid driver’s license with the license restriction noted above.