🇺🇸 Criminal Defense 🇺🇸

Have you been arrested?

You have the right to remain silent.
That right is worthless if you do not use it.

Exercising Your right to remain silent during a police interrogation is the most patriotic thing an American can do.
Americans died to guarantee that right for you.

🚔 What happens next?

Probable Cause

**Before proceeding, please keep in mind that this entire section and the paragraphs below primarily focus on some of the events that are a part of most misdemeanor cases.**

A warrant for arrest, a summons, or a notice to appear require the existence of probable cause to believe that the defendant committed a crime. A legal definition of “probable cause” is where an officer has a reasonable belief, supported by circumstances that are strong enough by themselves to warrant a cautious person to believe that the named suspect is guilty of committing a crime. In reality, it takes very little for a judge to believe that an officer had probable cause for your arrest. Its a low standard.


First Appearance

The first regularly scheduled court date for a defendant is called the first appearance. According to the rules governing a first appearance [see Fla. R. Crim. P. 3.130], a defendant must be brought in front of a judge a judicial officer for a first appearance within twenty-four hours of his arrest. The first appearance may be conducted by the judicial officer either in person or by an audio-visual device, in his discretion. The first appearance is a non-adversary proceeding which serves three functions: (1) to ensure that certain constitutional rights of a defendant are protected, (2) to review the legality of the defendant’s detention, and (3) to determine conditions of his release. Usually the judge, at the first appearance hearing, will not be the trial judge for the case. One of the important functions of a first appearance is to provide a defendant the opportunity to have bail set and/or conditions of release set (for example: no contact with the victim).


Getting Released From Jail

A defendant may obtain pre-trial release (getting out of jail before trial) by applying for review (filing a motion) of his pre-trial detention or any conditions of pre-trial release previously set. It is determined at a hearing before the court having jurisdiction over the matter. The motion for pre-trial release should set forth the facts and circumstances that justify bail or modification of previously set conditions of release.


What is arraignment?

Arraignment is when the accused person is officially notified of the charges against them. An accused is entitled to an arraignment in order to be notified of the charges against him and to enter a plea, and failure to provide an arraignment may be challenged by motion made before trial [see Fla. R. Crim. P. 3.160(a)]. However, if the defendant has an attorney, arraignment is usually waived by entering written pleas of not guilty.


Discovery

The State (prosecutor) has the duty to disclose only that information or material that is required to be disclosed. That requirement is defined by two separate criteria: whether the information or material sought is a type that is discoverable under the rules and whether it is in the possession or control of the State. The State must provide a list of the names and addresses of all persons known to have relevant information. The State has a duty to disclose any statements made by a defendant. The State’s duty includes statements made to any person. The State must disclose even those statements that it does not intend to use at trial.

Under Fla. R. Crim. P. 3.220(b)(1)(G), the State must disclose any material or information that has been provided by a confidential informant (CI). Rule 3.220(g)(2) provides that the State does not have to disclose a CI’s identity unless the informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant. The State may have a duty to disclose exculpatory evidence to a defendant. This applies to three types of cases:
1)Those in which a prosecutor has used false testimony; 2)Those in which a defendant has made a pre-trial request for specific evidence; and 3)Those in which a defendant has made a general, pre-trial request for favorable evidence. These three categories may be used as a logical means of analyzing the State’s duty to disclose exculpatory evidence. As soon as practicable after the filing of the indictment or information the prosecutor shall disclose to the defense counsel any material information within the State’s possession or control which tends to negate the guilt of the defendant as to the offense charged, regardless of whether the defendant has incurred reciprocal discovery obligations.

The discovery process is initiated by a defendant, and there will be no discovery, on either side, until a defendant decides that there will be. When a defendant does decide that there will be discovery and then formally initiates it, it becomes a binding reciprocal process. This means that the State must provide discovery to the defendant, and the defendant must provide discovery to the State. Each party does so through the use of particularly described documents—a Notice of Discovery and Discovery Exhibit—and pursuant to a carefully prescribed series of actions and responses.

🍸 DUI

Under Fla. Stat. ch. 316.193(1) (1993), a person is guilty of driving under the influence if the facts reflect that the person was in control of a vehicle and: (a) The person is under the influence of alcoholic beverages, any chemical substance set forth in Fla. Stat. ch. 877.111, or any substance controlled under Fla. Stat. ch. 893, when affected to the extent that the person's normal faculties are impaired; (b) the person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or (c) the person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.

It is clear that Fla. Stat. ch. 316.193(1)(a), (b) (Supp. 1982), creates one offense, driving under the influence, which may be proven in either of two ways: (a) by proof of impairment, or (b) by proof of a blood- alcohol level of 0.10 percent or higher. Because proof of either (a) or (b) is sufficient, if the State proves beyond a reasonable doubt that the defendant was driving or in actual physical control of a vehicle within the state, and had a blood-alcohol level of 0.10 percent or higher, then the State need not prove impairment. However, if the State cannot prove that the defendant had a blood-alcohol level of 0.10 percent or higher, it may still obtain a conviction if it can prove impairment beyond a reasonable doubt.

To make a lawful traffic stop for driving under the influence of drugs or alcohol, an officer must have a reasonable suspicion that the driver is impaired. Whether a reasonable suspicion exists under a given set of facts is a question of law reviewable by the de novo standard.
Hardship License for Business or Employment

Suspension for driving with an unlawful alcohol level of .08 or above, or refusal to submit to breath, urine, or blood test, must show proof of enrollment in DUI school and apply for an administrative hearing for possible hardship reinstatement. For unlawful alcohol level, must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement. For first refusal, must serve 90 days without driver license or permit prior to eligibility for hardship reinstatement. No hardship reinstatement for two or more refusals.

Suspension for persons under the age of 21 driving with a breath alcohol level of .02 or above, must complete a Traffic Law and Substance Abuse Education course before hardship reinstatement. Persons with BAL of .05 or higher, must complete DUI program prior to eligibility for hardship reinstatement. Must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement.

💔 DOMESTIC VIOLENCE

(1) “Department” means the Florida Department of Law Enforcement.
(2) “Domestic violence” means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.
(3) “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.
(4) “Law enforcement officer” means any person who is elected, appointed, or employed by any municipality or the state or any political subdivision thereof who meets the minimum qualifications established in s. 943.13 and is certified as a law enforcement officer under s. 943.1395.

If a person is found guilty of, has adjudication withheld on, or pleads nolo contendere to a crime of domestic violence, as defined in s. 741.28, that person shall be ordered by the court to a minimum term of 1 year’s probation and the court shall order that the defendant attend and complete a batterers’ intervention program as a condition of probation. The court must impose the condition of the batterers’ intervention program for a defendant under this section, but the court, in its discretion, may determine not to impose the condition if it states on the record why a batterers’ intervention program might be inappropriate. The court must impose the condition of the batterers’ intervention program for a defendant placed on probation unless the court determines that the person does not qualify for the batterers’ intervention program pursuant to s. 741.325. The imposition of probation under this section does not preclude the court from imposing any sentence of imprisonment authorized by s. 775.082.

§ 741.283. Minimum term of imprisonment for domestic violence.
(1)

(a)  Except as provided in paragraph (b), if a person is adjudicated guilty of a crime of domestic violence, as defined in s. 741.28, and the person has intentionally caused bodily harm to another person, the court shall order the person to serve a minimum of 10 days in the county jail for a first offense, 15 days for a second offense, and 20 days for a third or subsequent offense as part of the sentence imposed, unless the court sentences the person to a nonsuspended period of incarceration in a state correctional facility.

(b)  If a person is adjudicated guilty of a crime of domestic violence, as defined in s. 741.28, and the person has intentionally caused bodily harm to another person, and the crime of domestic violence takes place in the presence of a child under 16 years of age who is a family or household member, as defined in s. 741.28, of the victim or the perpetrator, the court shall order the person to serve a minimum of 15 days in the county jail for a first offense, 20 days for a second offense, and 30 days for a third or subsequent offense as part of the sentence imposed, unless the court sentences the person to a nonsuspended period of incarceration in a state correctional facility.
(2)  This section does not preclude the court from sentencing the person to probation, community control, or an additional period of incarceration.Fla. Stat. § 741.283
Hardship License for Business or Employment

§ 784.048. Stalking; definitions; penalties.
(1) As used in this section, the term:
(a) “Harass” means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.
(b) “Course of conduct” means a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose. The term does not include constitutionally protected activity such as picketing or other organized protests.
(c) “Credible threat” means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm. It is not necessary to prove that the person making the threat had the intent to actually carry out the threat. The present incarceration of the person making the threat is not a bar to prosecution under this section.
(d) “Cyberstalk” means to engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial emotional distress to that person and serving no legitimate purpose.
(2) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(3) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) A person who, after an injunction for protection against repeat violence, sexual violence, or dating violence pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court-imposed prohibition of conduct toward the subject person or that person’s property, knowingly, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(5) A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks a child under 16 years of age commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(6) A law enforcement officer may arrest, without a warrant, any person that he or she has probable cause to believe has violated this section.
(7) A person who, after having been sentenced for a violation of s. 794.011, s. 800.04, or s. 847.0135(5) and prohibited from contacting the victim of the offense under s. 921.244, willfully, maliciously, and repeatedly follows, harasses, or cyberstalks the victim commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(8) The punishment imposed under this section shall run consecutive to any former sentence imposed for a conviction for any offense under s. 794.011, s. 800.04, or s. 847.0135(5).
(9)
(a) The sentencing court shall consider, as a part of any sentence, issuing an order restraining the defendant from any contact with the victim, which may be valid for up to 10 years, as determined by the court. It is the intent of the Legislature that the length of any such order be based upon the seriousness of the facts before the court, the probability of future violations by the perpetrator, and the safety of the victim and his or her family members or individuals closely associated with the victim.
(b) The order may be issued by the court even if the defendant is sentenced to a state prison or a county jail or even if the imposition of the sentence is suspended and the defendant is placed on probation.

Suspension for persons under the age of 21 driving with a breath alcohol level of .02 or above, must complete a Traffic Law and Substance Abuse Education course before hardship reinstatement. Persons with BAL of .05 or higher, must complete DUI program prior to eligibility for hardship reinstatement. Must serve 30 days without driver license or permit prior to eligibility for hardship reinstatement.

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