Before You've Been Charged

Search and Seizure

1. The police asked me if they could conduct a search. Do I have to let them?
   
2. I got pulled over for a traffic violation. Can the police have a drug dog sniff my car?
   
3. Can the police have a drug dog sniff my house?
   
4. Can the police enter my house without a warrant?
   
5. The police searched my garbage to find evidence, and they didn;t have a warrant! Can they do that?

Forfeiture

1. Can the police seize my car when I've been arrested for a drug charge?
   
2. How can I challenge the forfeiture of my property?
   
3. What do the police have to prove at the adversarial preliminary hearing in order for them to keep my property?
   
4. I'm not the sole owner of property that the police seized. I co-own it with someone else. How does that affect the situation?

 Record Sealing and Expunction

University Admissions

1. How does a criminal record affect my chances to get into a college or university?

You and Your Lawyer

1. Can I represent myself in a criminal case?
   
2. I'm looking for a criminal defense lawyer, and I noticed that some of them are Board Certified Criminal Trial Specialists. What does that mean, anyway?
3. Once I've hired a private attorney, do I need to go to my court dates?
   
4. My loved one is in jail, and I can't afford bond! If I hired you, would there be anyway to get that bond amount reduced?
   
5. Can a lawyer guarantee a certain result in my case?

Once your case is resolved

1. Can I sue the police once my case is dismissed or if I'm found innocent?
   
2. What about the person who got the police involved in the first place? Can I sue him if I'm found innocent?

Frequently asked Questions about DUI

Before you've been charged

The police are investigating a crime and want to talk to me about my involvement with it! Should I talk to them?
Not without a lawyer present. Even innocent people need lawyers, and you should definitely have one with you if you're going to answer any question that the police ask. Let a lawyer guide you through this process to ensure that it goes smoothly.

I was arrested but haven't been charged yet. Should I hire a lawyer at this point?
Yes. There are great advantages to hiring a lawyer early, and a lawyer can help you tremendously, even before the state has decided to formally charge you with a crime. The period after you are arrested but before you are charged is a time when there is a lot of flexibility in the judicial system. We can often contact the prosecutor's intake office and influence the charging decision, which is the filing of the formal charge agaist you.  Sometimes we are able to convince them not to file charges at all, or to file less severe charges.

Search and Seizure

The police asked me if they could conduct a search. Do I have to let them?
Absolutely not. If the police ask permission to search, always refuse. If they tell you they need to search, tell them they may not.  If they say since you have nothing to hide, you don't mind if I search... Tell them you do mind, and that they may not. If you consent to a search, then the police can and certainly will use any evidence they find against you. If you refuse, and they search anyway, this creates an excellent legal issue that allows us to have the evidence suppressed.  (thrown out.) If the police have a search warrant, you must allow them to search.  A search warrant is a court order.

I got pulled over for a traffic violation. Can the police have a drug dog sniff my car?
Yes, (according to the United States Supreme Court case Illinois v. Caballes). Florida courts have also said that a sniff of a car by a drug detection dog during a valid traffic stop is not a search. However, all is not lost! There may still be a few ways we can get the results of the drug sniff thrown out. We can attack the results based reliability of the dog, whether it has had false alerts in the past, and whether it alerted in the manner in which it was trained to.

Can the police have a drug dog sniff my house?
Only if the police have probable cause to believe that a crime has been committed. While Florida courts have said that dog sniffs of cars during traffic stops are not searches, they have ruled that dog sniffs of homes are searches.

Can the police enter my house without a warrant?
Only under limited circumstances. The police can always enter your house if they ask to come in and you give your consent. If you do not consent and the police do not have a warrant, then they can still enter your house if there are exigent circumstances. These circumstances include when the police reasonably believe that someone inside the home requires medical attention, and when the police chase a fleeing felon into the home. 

The police searched my garbage to find evidence, and they didn't have a warrant! Can they do that?
Yes. A search of curbside garbage does not require a warrant. Once you've put your trash out by the street to be picked up, it's considered abandoned property and you no longer have an expectation of privacy in it.

Forfeiture

A forfeiture occurs when the police arrest a person for a felony, and also seize (take possession of) other property that belongs to you, most often your vehicle (or sometimes boat, and very seldom, a house).  There has to be a connection between the property seized and the offense charged. Most often, this means you were stopped while driving, the police found drugs in the car, arrested you for the drug charge and seized the car.

** This section is not intended to be the entire summary of the law in this area, as the law is highly technical and its application depends on the individual facts of each case.**

Can the police seize my car when I've been arrested for a drug charge?
This is the most common police forfeiture situation. They can take your car, but we may be able to get it back for you. Florida law says that the police can seize items that have been used as instrumentalities in committing a felony. If the quantity of drugs that you were found with is a controlled substance, or in the case of marijuana, large enough to qualify as a felony, (over 20 grams, or just under an ounce),  then the police often attempt to keep the vehicle. This is a very tricky area of he law.  The police often offer to allow a person to buy back their vehicle.  You should always consult an attorney who is very familiar with forfeiture law immediately when your property has been seized.  There is a 15 day time limit that applies with regard to the hearing to demand the return of your property, and many other technicalities that apply.  Do not try to handle this yourself! 

To find out more about police forfeitures, read Florida Statutes 932.701-932.707

I'm not the sole owner of property that the police seized. I co-own it with someone else. How does that affect the situation?
If property is co-owned, then it's much harder for the police to keep it. They have to prove by a preponderance of the evidence that the co-owner also knew or had reason to know that the property was employed or likely to be employed in a criminal activity.

To find out more about police forfeitures, read Florida Statutes 932.701-932.707

Record Sealing and Expunction

Can I get my criminal record sealed?
Possibly. There are several requirements:

• You must never have been adjudicated guilty of this offense, or any other criminal offense, prior to petitioning for sealing.
• You must not have been adjudicated guilty on the offense that you want to seal. This means that if you pled guilty or no contest, but adjudication was withheld, then you may be eligible to have the record sealed.
• You must have never previously sealed a criminal record. Please note that this means you get only one sealing in your entire lifetime!
• You must not be on community control or probation.

Because you can only seal a criminal record once in your lifetime, please be sure to consult an attorney before you attempt to seal a record. Just because you can seal the offense, does not mean you should. You do not want to waste your once-in-a-lifetime opportunity on a minor offense, or even one that was dismissed!

Read the full Florida statute on sealing criminal records

Are there any records that I can't get sealed?
Yes, there are a number of records that cannot be sealed. Records pertaining to many of the worst crimes, such as homicide, robbery, or kidnapping cannot be sealed. Sex crimes, including child pornography, also cannot be sealed.
There are also some less obvious offenses which cannot be sealed. Drug trafficking cannot be sealed, nor can manufacturing a controlled substance. Please be aware that this includes growing marijuana.

How is the effect of expunging a criminal record different from sealing a criminal record?
When a criminal record is sealed, the file is wrapped in duct tape. When a criminal record is expunged, the file is physically destroyed. (Shredded)
Please remember, however, that even if your criminal record is expunged, you still must acknowledge the arrests covered by that record if you are applying to work for a criminal justice agency, if you are the defendant in a criminal case, if you apply to the Florida Bar and if you are applying to work with children, the disabled, or the elderly. 
 
Read the full Florida statute on expunging criminal records

Read the full Florida statute on sealing criminal records

University Admissions

How does a criminal record affect my chances to get into a college or university?
College applications ask whether an individual as been arrested or convicted of a crime. It is very important to answer this question honestly, because failing to do so will result in expulsion.

If you do state that you have a criminal record, a school will typically request more information from you regarding the incident. Often, the school will personally interview you. Based on what they learn, they may admit you, admit you on a probationary basis, or deny your application.

Each university handles this process in a different way. There is no uniform system. A good rule of thumb is that universities with smaller numbers of applicants are more likely to accept individuals who have a criminal record.

If a person is on felony probation when they apply, this is an entirely different situation. In some circumstances, such as sex offender probation, the university will not allow the probationer to become a student there until the person has actually applied for termination of the probation.

You and Your Lawyer

Can I represent myself in a criminal case?
While you do have the right to represent yourself, that is an extremely bad idea. Even if your case seems (to you) to be cut and dry, please see a lawyer for a consultation. Good lawyers have extensive legal training and experience, and understand the nuances of the law. Often, there are legal defenses available to you of which you are unaware. Hiring a lawyer to represent you ensures that you have every advantage possible in your case.   Also, the prosecutors often do not offer their best deals to persons who represent themselves.  Representing yourself in a criminal case is similar to performing a surgery on yourself; you may be able to hack off the mole, or stitch up the wound, but there will likely be a scar, and there is no guarantee there will be no infection or gangrene.
Bottom line: you wouldn't try to perform real surgery on yourself- you'd hire a doctor. Don't try to represent yourself in a criminal case- hire a lawyer.

I'm looking for a criminal defense lawyer, and I noticed that some of them are Board Certified Criminal Trial Specialists. What does that mean, anyway?Board certification recognizes attorneys' special knowledge, skills and proficiency in various areas of law and professionalism and ethics in practice. "Board certification is a valuable credential that is becoming a significant trend in the legal profession," said Florida Bar President Frank Angones Jr. Specialization recognizes lawyers' expertise and professionalism, and is a natural progression for lawyers who can demonstrate high skill levels in particular areas of law.

There are 351 attorneys out of the 60,000 plus that are members of the Florida Bar who are Board Certified in Criminal Trial Law. 

To be recognized by the Florida Bar as a board certified criminal trial specialist, a lawyer must have tried at least 20 jury trials, 15 of which involved a felony. The lawyer must also have devoted at least 30% of his or her practice to criminal cases. He or she also has to have the recommendations of colleagues in the field of criminal law who agree that this person should be allowed to call themselves a specialist.  To become Board Certified, a lawyer must also take a separate, day-long  certification exam, which is only about criminal trial law.

 I've been a Board Certified Criminal Trial Specialist since 1994, just six years after the certification program was first established. I devote 100% of my practice to criminal cases, and have since becoming a prosecutor in 1988.

For more information on choosing a Board Certified Criminal Trial Specialist, please visit the Florida Bar's website.
  
Once I've hired a private attorney, must I attend my court dates?
Generally, NO.   Your lawyer attends the vast number of court dates for you. Your lawyer should tell you in advance whether or not it is necessary or helpful for you to attend a particular court  date.  The client always has to attend the final court date, where the case is resolved. 

NOTE:  At our office, we can often resolve cases for out-of-towners without them ever having to return to Brevard County for any court dates at all.

BOND

Bond is the amount of money that the Court has set as the amount that must be paid before an accused person can be released from jail.  This is often set pursuant to schedule (set amounts) and does not address the specific facts of your case.  If the bond is high, especially in serious felonies, it is better to discuss a reduction with counsel.  If the amount remains high, even after a hearing, it is often best to invest the money in a good attorney to resolve the case, rather than to post a bond that gets the person out of jail, but does nothing toward the ultimate resolution of the case.  A person may post the entire bond amount, and that amount will be refunded at the end of the case.  If the person uses a bondsman to bond out, the bondsman must, by statute, charge 10% of the total bond as his fee, which is therefore not returned at the end of the case. Therefore, if the bond is, say, $35,000, it is often better to 1) try to get a judge to reduce that amount, and if they will not, 2) use that $3500 (bondsman's fee) toward retaining counsel.

My friend or loved one is in jail, and I can't afford to post the bond. If I hired you, would there be any way to get that bond amount reduced?
Yes, we can ask for a hearing to have bond reduced. There are a number of different reasons that the Court might reduce that initial bond.  One of the most common reasons is to show that the individual has significant ties to the community, such as long-term residence in the area, home ownership, family members in the area, lack of criminal history, long term steady employment, and the fact the person has retained a respected attorney. (The assumption is that a person with significant ties isn't likely to flee the area and never come back for court dates), and that the person is going to remain in contact with his/ her attorney, and resolve the case ie: not flee the jurisdiction of the Court.)
The fact that the facts demonstrate that a person is not a danger to the community is also very helpful in getting a bond reduction.  Offenses that are considered violent crimes pose special problems in this area, as do significant prior criminal histories.

Can a lawyer guarantee a certain result in my case?
Absolutely not. If a lawyer ever guarantees a certain result, run!
Criminal defense lawyers are not allowed to condition payment on getting a certain result. These are called contingency fees, and the ethical rules governing lawyers prohibit contingency fees in criminal cases. A good criminal defense lawyer will be able to tell you what the likely outcome of your case will be. No criminal defense lawyer however, should ever guarantee a result.

Once your case is resolved

Can I sue the police if my case is dismissed or if I'm found innocent?
Probably not. The standard one has to meet to sue the police is quite high.  You would have to show not just that the police were wrong about you, but that they knew that, and arrested you without probable cause and without a valid warrant. You could also try to prove that the arrest was just a pretext and was actually made for some unlawful purpose. It's very difficult for you to succeed in such a lawsuit.  Be very careful with attorneys that tell you they will successfully sue the police when your case is complete. 

What about the person who got the police involved in the first place? Can I sue him/ her  if I'm found innocent?
Probably not. You might be able to sue for malicious prosecution, but there are some very strict requirements. For example, it's not enough for the complaining witness to have been wrong when they accused you, they need to have accused you for some wrongful or malicious purpose (like trying to gain an advantage in a custody battle).