*indicates required fields

*First Name


Last Name


*E-mail Address


Comments / Questions

 

current news stories related to criminal defense
criminal defense florida

Should I contact an attorney if I’m under investigation but have not been charged? Definitely. An attorney’s intervention at an early stage in a case can increase the odds of  no charges or reduced charges being filed. An attorney also can protect your rights during the investigation.


When is a police investigation considered a search?
A police investigation is not a search unless it intrudes on a person's privacy. In other words, if a person did not have a "legitimate expectation of privacy" in the place or thing searched, no "search" has occurred.

Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:
  • Did the person expect some degree of privacy?
  • Is the person's expectation reasonable-that is, one that society is willing to recognize?
For example, a person who uses a public restroom expects that no one will spy on her, and most people-including judges and juries-would consider that expectation to be reasonable. Therefore, if the police install a hidden video camera in a public restroom, the action is considered a search and must meet the Fourth Amendment's requirement of reasonableness.

On the other hand, if the police glance into a car and see a weapon on the front seat, it is not a search because it is unlikely that a person would think that the front seat of a car is a private place. And even if he did, society is not generally willing to extend the protections of privacy to the front seat of an automobile.


Do the police always need a warrant to conduct a search?
No. In many situations, police may legally conduct a search without first obtaining a warrant.
  • Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don't need a warrant. The police typically obtain a person's consent by threatening to detain her while they obtain the warrant.
  • Searches that accompany an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person's car (if it is being held by the police) and personal effects on the theory that the police need a precise record of the person's property to avoid claims of theft.
  • Searches necessary to protect the safety of the public. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger. For example, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients. And in the famous O.J. Simpson case, the police justified their entry onto O.J. Simpson's property on the grounds that they feared for the safety of other family members.
  • Searches necessary to prevent the imminent destruction of evidence. A police officer does not need to obtain a warrant if she has observed illegal items (such as weapons or contraband) and believes that the items will disappear unless the officer takes prompt action. This exception arises most frequently when the police spot contraband or weapons in a car. Because cars are moved so frequently, the officer is justified in searching the entire vehicle, including the trunk, without obtaining a warrant. On the other hand, if the police learn about a marijuana-growing operation from a neighbor, they usually would need a warrant, as it is unlikely that the growing plants and other evidence of the operation will disappear quickly enough to justify a warrantless search.
  • "Hot pursuit" searches. Police may enter private dwellings to search for criminals who are fleeing the scene of a crime.

When do the police need a warrant to make an arrest?
As long as the police have good reason (called "probable cause") to believe that a crime has been committed and that the person they want to arrest committed the crime, they can, with just one exception, make an arrest without asking a judge for a warrant.
The exception? There are few places where the adage "a man's home is his castle" still applies, and an arrest at home is one of them. The police must have a warrant to arrest a person at home if the arrest is for a nonserious offense -- such as a simple assault  -- and there is no fear that the person they want to arrest will destroy evidence or cause harm to the public.

If I'm arrested, do the police have to "read me my rights"?
No. However, if they start questioning you but haven't read you your rights, they can't use anything you say as direct evidence against you at trial. What are these rights? Popularly known as the Miranda warning (ordered by the U.S. Supreme Court in Miranda v. Arizona), your rights consist of the familiar litany invoked by TV police immediately upon arresting a suspect:
  • You have the right to remain silent.
  • If you do say anything, what you say can be used against you in a court of law.
  • You have the right to consult with a lawyer and have that lawyer present during any questioning.
  • If you cannot afford a lawyer, one will be appointed for you if you so desire.
  • If you choose to talk to the police officer, you have the right to stop the interview at any time. (This part of the warning is usually omitted from the screenplay.)
It doesn't matter whether an interrogation occurs in a jail or at the scene of a crime, on a busy downtown street, or in the middle of an open field: If you are in custody (deprived of your freedom of action in any significant way), the police must give a Miranda warning if they want to question you and use your answers as direct evidence at trial. If you are not in police custody, however, no Miranda warning is required. This exception most often comes up when the police stop someone on the street for questioning about a recent crime and the person blurts out a confession before the police have an opportunity to deliver the warning.


Do I need a lawyer at my arraignment?
Your arraignment is your first appearance before a judge, at which time you enter a plea of guilty or not guilty. If you are represented by counsel, your attorney may attend your arraignment for you. If you have no attorney, you must personally attend your arraignment. As in all serious legal matters, being represented by counsel assists with protecting your rights.


Can a person who is charged with a crime be forced to give bodily samples?

Yes. You might think that being forced to give bodily samples -- such as blood, hair, or fingernail clippings -- is a violation of the U.S. Constitution's protection against self-incrimination, found in the Fifth Amendment. But the U.S. Supreme Court thinks otherwise. It has ruled that the Fifth Amendment protects communications only, and that bodily samples are physical evidence and therefore not covered by the Constitution.

Who decides how much bail I have to pay?
Judges are responsible for setting bail. Because many people want to get out of jail immediately and, depending on when you are arrested, it can take up to five days to see a judge, most jails have standard bail schedules which specify bail amounts for common crimes. You can get out of jail quickly by paying the amount set forth in the bail schedule.

Are there are restrictions on how high my bail can be?
The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. The purpose of bail is to give an arrested person her freedom until she is convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep her from fleeing before a case is over.
Some judges set a high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by some to violate the Constitution, this practice has continued in many courts.

What is the difference between felonies and misdemeanors?
A misdemeanor offense is a crime that is punished by a maximum of one year in the county jail. Felonies are more serious crimes which are punishable by more than one year in the state prison system.
Behaviors punishable only by fine, such as traffic tickets, are usually not considered crimes at all, but are infractions.

What does “presumed innocent" mean?
In the United States, all criminal defendants are presumed to be innocent until, and if, they are proven guilty beyond and to the exclusion of every reasonable doubt. This requires the prosecutor to convince the jury of your guilt; you are not required to say, do or prove anything. I advise, however, that you put on a strong defense with the help of an experienced criminal defense attorney.

What standard is used in criminal trials to prove a defendant is guilty?
The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in noncriminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- just over 50%.)

As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is reasonable doubt -- that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.

Am I entitled to a jury trial?
The U.S. Constitution gives a person accused of a crime punishable by a sentence longer than six months the right to be tried by a jury.

Should I testify in my own defense?
The 5th Amendment to the U.S. Constitution gives you the right not to testify, and jurors will be told that they cannot assume anything negative if you decide to keep quiet.

You may want to remain silent at trial if you have previously been convicted of a crime, because a prosecutor may be able to bring out this information on cross-examination.
Additionally, jurors are unpredictable. They may harshly judge you if you have a poor demeanor, or they may not believe you, even if you are being truthful

Who determines what punishment a convicted defendant receives?
Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant's guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.

What factors do judges use in determining sentences?
If the judge has discretion to determine the sentence, the defense may bring to a judge's attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called "mitigating" factors):
  • The offender has little or no history of criminal conduct.
  • The offender was an accessory to the crime (helped the main offender) but was not the main actor.
  • The offender committed the crime when under great personal stress; for example, had lost a job, was late on rent, and had just been in a car wreck.
  • No one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.

Just as mitigating circumstances can sway a judge to lessen a sentence, "aggravating" circumstances can compel a judge to "throw the book at" an offender. A previous record of the same type of offense is the most common aggravating factor. Other aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon


DUI Related Questions:

I have just been arrested what do I need to do?
Once arrested or charged with a crime you have rights, DUI is no exception. After your arrest the police and prosecution are putting together their case against you and you need to be prepared to defend yourself against the virtually unlimited resources of the State. You should not talk about your case with anyone and are under no obligation to talk to the Prosecution or the Police without an attorney present. The law gives you certain rights namely the right to remain silent and the right to an attorney, these are not just mere suggestions. You should consult an attorney as soon as possible so that you do not miss important deadlines. In fact, there is a 10 day deadline to take administrative action to keep you license from the 6/12/18 month suspension you may have for a failing a breathalyzer, blood test, or refusing a breath or blood test. There are also deadlines that the State must follow in their prosecution. Without hiring an attorney soon after you are arrested or charged you may have to waive some of your rights.

The officer took my license, can I get it back?
YES. Florida law allows for administrative challenges to license suspensions for failing breath or blood test, or refusing a breath or blood test. However, you only have 10 days from your arrest to file the appropriate paperwork.


What are the penalties for DUI?
Even for a first offense, the penalties for DUI can be significant. Although, the ultimate
resolution of your case depends on any defenses you may have and the facts of your case.
Florida law requires that if convicted for a first offense DUI that you be sentenced to at least 6 months probation, at least a $250 fine, a 10 day vehicle immobilization, DUI School Level 1 , 6 months Driver’s License Suspension, 50 hours Community Service, and other requirements that the judge may impose. For a second and subsequent offense, the penalties can be much greater depending on the length of time between offenses, and the facts of your case.


Will I lose my license if convicted, if so, for how long?
YES. Even for a first offense you license will be suspended. The length of suspension depends on the facts of your case, the minimum suspension required by the statute, and if you have had any prior DUI convictions.  However, under certain circumstances it is possible to receive a license for work and school only.

 

Home | Drug Related | RICO / White Collar Crimes | Sexual Charges | Violent Crimes | Theft | DUI | Homicide
Assault / Battery | Fraud | Domestic Violence | Resisting Arrest | Juvenile Crimes
Attorney Profiles | FAQs | Links | Contact Us

©2008 Law Offices of Schiller Kessler & Gomez, PLC. • All Rights Reserved.

The information on this website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.