Criminal Defense FAQ

THE ARREST

What are your rights after your arrest?

You have a right to know the crime or crimes with which you have been charged.  You have a right to know the identity of the police officers who are dealing with you.  This is your right by Statute and by custom.

You have the right to communicate by telephone with your attorney, family, friends, or bondsperson as soon after you are brought into the police station as practicable.  The police have a right to complete their booking procedures before you are allowed to use the telephone.

Can a Law Enforcement Officer detain you without arresting you?

YES, WITH LIMITATIONS!  Under Florida law, based upon reasonable suspicion that you may be involved in criminal activity, a police officer may require you to identify yourself and explain your presence at a particular time, without arresting you.  Under Florida law the officer may not remove you from the immediate vicinity without making an arrest, unless you voluntarily accompany the officer to some other location.

If the officer has reasonable grounds to believe that you are armed, he or she may conduct a limited pat-down of your outer garments for the purpose of detecting weapons.  If this “frisk” results in reasonable belief on the part of the officer that you are carrying a weapon, the officer may remove the suspicious object for protection.  The officers must return to you any unlawful object found unless they place you under arrest.  Unless the officer places you under arrest, the frisk or search must be limited to suspected weapons.

The officer may ask you some questions in order to complete the field interrogation card.  You have a constitutional right to not answer them, or give your name, unless the officer has a reasonable suspicion that you are involved in a crime.  At the conclusion of this temporary detention the officer must either arrest you or let you go.

If you should enter a retail establishment where goods are placed on display and for sale, the merchant or the employees may detain you on the premises for a reasonable time for questioning if they have probable cause to believe that you have stolen or have attempted to steal goods for sale.  Under such circumstances police officers called to the scene may make an arrest for shoplifting even though the alleged offense was not committed in the officer’s presence.  Under Florida law, there are few specified misdemeanors for which an arrest may be made without a warrant, even when not committed in the presence of the arresting officer.  These exceptions to the general rule include, but are not limited to, domestic violence, shoplifting and carrying a concealed weapon other than a firearm.

The Officer never read me my rights.  Can I get my case dismissed?

No.  The officer is supposed to give a warning of your right to remain silent and tell you that anything you say may be used against you in a court of law (your 5th Amendment rights) and that you have a right to consult an attorney, and if you can not afford one you have a right to have a lawyer appointed for you (your 6th Amendment rights) after he/she detains you.  Sometimes officers do not.  The only consequence of failing to tell you is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.

Of more consequence in most cases is the failure to advise you of the state’s “implied consent” law, that is, your legal obligation to take a chemical test and the results if you refuse.  This can impact the suspension of your license.

Can an officer use force when making an arrest?

The officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest.  The legality of the arrest has nothing to do with whether or not you are ultimately convicted.  As long as the officer has reasonable grounds for making the arrest at the time of the arrest, you cannot claim later that the arrest was unlawful because you were found not guilty.

Resisting arrest with violence is a felony under Florida law.  Resisting arrest without violence or offering to do violence is a misdemeanor.  You could be convicted of either of these crimes, even if you were found not guilty of the crime for which you were arrested.

Obstructing an officer with violence is also a felony under Florida law.  Obstructing or interfering with an officer on duty without violence is a misdemeanor.  If you believe that your rights are being violated, make it a point to remember exactly what the police officer did and then advise your attorney concerning this at the earliest possible time.

What are the procedures usually followed when you are arrested?

The officer will take you to a police station.

1.  You will be advised generally as to the charges against you.  However, these charges may be changed later and stated in more detail by the office of the prosecuting attorney or in some instances by the grand jury.

2.  You may be required to participate in a lineup, to prepare a sample of your penmanship, or to speak phrases associated with the crime with which you are charged, to put on certain wearing apparel or to give a sample of your hair.  You should ask to have your attorney present during any of these procedures.  You have an absolute right to counsel, if you are asked to participate in a lineup after you have been formally charged by the prosecuting attorney or indicted by a grand jury.

3.   You also may be required to be fingerprinted and photographed.

4.    You will be arraigned at a court session or your attorney will file a written plea on your behalf.  An arraignment is no more than a plea of guilty, not guilty or no contest to the charge.  If you plead not guilty, a trial date will be set.  If you plead guilty or no contest, a sentencing date will be set, generally after the court has received a pre-sentence investigation report from probation and parole.

What happens to my personal property when I am arrested?

If you should be booked into jail, the police may take money and property from you for safekeeping.  They will carefully inventory your money and property and give you a copy of the inventory.  At the time of your release or at the conclusion of your case, such money and property that was not seized as evidence in the case may be returned to you, subject to your criminal status.  You will be given an opportunity to sign the property list.  You should make certain that the list includes all the items taken from you.

How are you released from jail?

Upon arrival at the jail or shortly thereafter, you will be given an opportunity to contact your attorney.  The attorney, in turn, may arrange for the posting of a bond and may appear with you in court and ask the court to lower the bail if it is believed to be excessive under the circumstances.  You may be released upon personal recognizance (your promise to appear in court when directed), or you may be released on bail, which involves the posting of either cash money or a surety bond as security for your court appearance.  Bail bonds from licensed sureties are usually available at a cost of 10% of the amount of the bail.

If you are taken into custody and booked into the jail and remain there, you must be brought before the magistrate within 24 hours of your arrest.  At that appearance, you may request that the magistrate lower your bail in consideration of your ties in the community, financial resources, employment record or any other factors, including your past criminal record and your past history of failure to appear in court when scheduled.

What is “drunk driving”?

Drunk driving, sometimes called driving while intoxicated (DWI) or driving under the influence (DUI), has two meanings:

Driving with a blood alcohol level over the state’s maximum permissible blood alcohol limit.  The limit for adults is 0.08%.

You may also be guilty of DUI/DWI for driving when your physical abilities are impaired by drugs or a combination of drugs and alcohol.  In the eyes of the law, it makes no difference whether the drug is legal or illegal, prescription, or over-the-counter.  If taking that drug impacts your senses of seeing, hearing, talking, walking and/or judging distances, you may be guilty of a drunk driving offense.

 

What do police officers look for when searching for drunk drivers on the highways?

The following is a list of symptoms in descending order of probability that the person observed is driving while intoxicated.  The list is based upon research conducted by the National Highway Traffic Administration:

(1)     Turning with a wide radius;

(2)     Straddling center of lane marker;

(3)     “Appearing to be drunk”;

(4)     Almost striking object or vehicle;

(5)     Weaving;

(6)     Driving on other than designated highway;

(7)     Swerving;

(8)     Speed more than 10 mph below limit;

(9)     Stopping without cause in traffic lane;

(10)        Following too closely;

(11)        Drifting;

(12)        Tires on center or lane marker;

(13)        Braking erratically;

(14)        Driving into opposing or crossing traffic;

(15)        Signaling inconsistent with driving actions;

(16)        Slow response to traffic signals;

(17)        Stopping inappropriately;

(18)        Turning abruptly or illegally;

(19)        Accelerating or decelerating rapidly;

(20)        Headlights off.

Speeding, incidentally, is not a symptom of DUI; in some circumstances it may suggest quicker reflexes and sobriety.

What is the officer looking for during the initial detention at the scene?

Generally speaking, there are three kinds of evidence that a police officer will consider and gather in the investigation:

(1)  gross observations of behavior in general;

(2)  specific observations of balance tests and the like (usually called “field sobriety test”); and

(3)  chemical test results of the motorist’s blood, breath or urine.

A police officer may arrest a motorist if the cumulative effect of the evidence convinces the officer that he has “probable cause” to make an arrest.  This is a far lower standard than what the prosecutor must prove at trial.  There the case must be proven “beyond a reasonable doubt.”  Although this is a high standard, it is met every day in courts all over the country.

 

If I was stopped for another traffic violation, can the police also arrest me for a DUI or DWI?

The original cause for the officer’s stopping you need not be related to driving under the influence of alcohol or drugs.

Routine detentions for equipment and registration compliance, such as a cracked windshield, inoperative taillight, headlights not turned on, and so forth, maneuvering and parking violations, and many other reasons have been held by the courts to constitute sufficient cause.  If the stop was the result of racial profiling, that may give a lawyer more to work with in an effort to have charges dismissed or reduced.

How long will a DUI Conviction stay on my criminal record?

Forever.  Furthermore, the mandatory minimum sentence and driver’s license suspension increases with each subsequent arrest.

 

DRUGS/NARCOTICS

 

I use drugs, but I have never sold them.  The police arrested me with some cocaine and charged me with possession with intent to sell.  Is that right?

The law does not require the police to prove you DID sell, just that your intent was to sell.  This is done by the circumstances of the possession and by expert opinion of the police.  Factors such as the way it is packaged (many small bindles- “packaged to sell”), and what is found with it (such as scales) can fill in the person’s likely intentions.  In addition, experienced narcotics officers will be allowed to testify that from their experience these factors and the quantity found are consistent with intent to sell the drugs.

I was arrested last night and charged with possession of a controlled substance because I had some of my prescription pills loose in the bottom of my purse.  What should I do?

This has become more and more of an issue in recent years.  If you have a legal prescription, you should always carry it in your prescription bottle to avoid an unnecessary introduction into the criminal justice system.  If you absolutely must keep your pills in a separate container, you must carry the paper prescription that authorizes you to be in possession of the medication.  If you don’t, and you are arrested, see a lawyer immediately.  If the prescription matches the pills that were found in your possession the case will probably get dropped eventually.  A lawyer can usually help to ensure that happens without the necessity of missing work for several court dates, and advise you on the steps necessary to remove the arrest from your permanent record if you have never previously been arrested. 

I got busted with a crack rock and the first time in court, the prosecutor offered to let me plead to the possession for probation.  Should I take it?

That depends on a number of factors.  Why did the prosecutor make such an offer off the bat?  Is there a problem with his case?  Could it get thrown out on legal grounds?  Do you have prior convictions?  How much time can you serve if you are found in violation of probation?  What are the chances of avoiding any conviction at all by trying the case?  What effect will this conviction have on your driver’s license?  Your immigration status?  Your ability to get a government job?  Your ability to get bonded, or to get a professional license?  You could even lose your eligibility to receive public assistance.  Are you eligible for pre-trial intervention or Drug Court, which require a vigorous regiment but eventually can lead to dismissal of the charges?  In other words, the issue is so complicated and far reaching that even if you want to plead guilty, you still need a lawyer’s advice so you know fully what you are doing.

 

My friend gave me a ride and the police pulled him over.  They found some loose pills in the console that the officer said were oxycodone and they charged me along with him.  Those were not my drugs.  How can they do that?

This is a common misconception: that ownership of the drug controls.  It’s the POSSESSION that is illegal, and you do not have to have something in your hand or pocket to “possess” it.  The police don’t know that it was the driver who put the pills in the console (which sits between you two).  Unless your friend talks and claims them, he’s leaving the possibility open that he was innocent and the drugs were yours.  As a result the police will arrest everyone who was within arm’s reach of it.  This is a case you will certainly want to fight aggressively, but also be aware in the future that whom you hang out with can have serious consequences.  Just being near illegal drugs is dangerous.

I got stopped by a traffic cop for a busted tail light and then, without my permission he searched my car and found some marijuana in the trunk.  At the hearing he said he knew I had drugs because he saw seeds on the floor and they were in “plain view”, but the drugs in the trunk weren’t.  Can a lawyer get the drugs excluded from evidence?

Not if you assume the fact that he did see the seeds.  That would give him “probable cause” to search for drugs elsewhere.  But did he seize any seeds from the floor to mark the evidence?  Do you dispute his claim that there were seeds on the floor?  If so, your lawyer might attack his testimony on the lack of physical evidence.  In addition, there is the issue of whether you KNEW the drugs were in the trunk.  You should see a lawyer.  Any drug case has many issues that can determine whether you get convicted or the case dismissed.

I have heard the term “unwitting possession”.  What does it mean and is it a valid defense?

Unwitting possession means that you possessed a contraband substance without knowing you had it.  The classic case is mail carriers-they deliver a package containing cocaine but are not

guilty of possessing cocaine because they didn’t know (and had no way to know) that cocaine was in the package. The other classic case is borrowing someone’s car and the owner had cocaine stashed in the door frame.   To be convicted in Florida, the prosecutor must prove that you knew of the contraband’s existence, and that you knew of its illicit nature.

The cops planted a rock of cocaine on me when they arrested my friend with his stash.  The particular cop has a problem with me because I wouldn’t be a snitch for him.  I used to use drugs, but I’ve been clean for two years.  I know the judge will believe the cops and not me.  What can I do?

This is a difficult situation.  Many more people claim they were set up than actually were, but it does happen.  There is a lot of research and investigation to do before you decide what to do.  Your lawyer should bring a motion to find out if this cop has had citizen complaints about lying and planting evidence before.  Gather up witnesses who know you well and know you have been off drugs for two years, especially people present when you have refused offers of drugs.  Your lawyer might have an investigator talk to the other cops involved in the operation, or do so himself.  If one was not really comfortable with what happened, he might assist in some way, perhaps behind the scenes.  Don’t expect any officer to testify that he saw evidence planted.



Copyright © 2017 Ferraro Law Group, PL. All Rights Reserved.


Ferraro Law Group, PL | 3601 SE Ocean Boulevard Suite 201 | Stuart, FL 34996 | tel. (772) 221-0600 | fax (772) 220-0640