Florida Criminal Defense Frequently Asked Questions

The following information includes frequently asked criminal defense questions. The answers stated are general in nature and are not intended to apply to every situation. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. By contacting the Law Offices of David P. Hill, P.A., you can receive a personal consultation regarding your specific defense case.

Do I need a Criminal Lawyer?

This is the first and biggest question, really. And the best way to answer this question may be to rely on instinct: if your gut feeling is that you should talk to a criminal lawyer, you probably are right - seek advice. The main reasons prompting the need for a criminal lawyer are:

• You have been charged in court with a crime. This may occur following an arrest, or through a summons to appear in court and answer a criminal complaint or indictment. All people have an absolute constitutional right to the assistance of a lawyer in a criminal court case.
• You have been arrested. If arrested for a potential criminal charge, a referral for criminal charge(s) may be made to the District Attorney in the county of the alleged law violation, or to the prosecutor for the federal district of the alleged violation. If an in-custody interrogation follows the arrest, the person being questioned has an absolute constitutional right to remain silent, and to have a lawyer present during the questioning.
• You are being investigated for a crime. Law enforcement officers and prosecutors often contact people directly to answer questions about their alleged involvement in a crime.

Unlike civil law, which involves private law suits between two or more private entities, criminal law involves defendants who are being prosecuted by the state or federal government. Orlando criminal defense Attorney David P. Hill represents individuals who are being prosecuted by the State of Florida for an act that has been classified as a crime. Crimes are generally classified as:

• Misdemeanors- less serious offenses that are normally punishable by a fine like some traffic violations, petty theft cases, or possession of a small amount of marijuana, or
• Felonies- more serious offenses that warrant imprisonment of one or more years, such as rape, grand theft, assault with a deadly weapon, or homicide/murder.

Generally, the sooner a criminal lawyer is brought into a criminal case or investigation, the better potential results for the client. Don't take a wait-and-see approach to a criminal situation. Do not seek answers to questions about your rights and legal status from police officers and prosecutors, who do not have a legal duty to act in a suspect's best interest.

How can I tell if a lawyer is any good?

There are many theories on what makes a lawyer good: experience, age, how expensive they are and connections. None of these theories provide a complete answer. A client must feel comfortable with his or her lawyer, be able to communicate with that lawyer and be confident that the lawyer knows what he or she is doing. Ask questions about the lawyer's experience in criminal law and with the specific charge. Ask about specific defense tactics and strategies in your case. Ask if the lawyer is comfortable in the specific court or with the specific prosecutor. Satisfy yourself that the lawyer understands you, understands your case and knows what to do to advocate on your behalf. Discuss specific fee arrangements - these should be explained fully to you, preferably in writing.

What happens if I am arrested?

If you are arrested and charged with breaking a criminal law, the case is taken for an initial appearance before a magistrate who advises the accused of the formal charge and potential penalties, and sets bond for future appearances in court. The bond may be a secured bond, where cash or property must be posted for release, or unsecured, requiring no cash or property to be posted for release. If the defendant cannot post a secured bond, he may be incarcerated pending the next appearance in court. If bond is posted or unsecured, he will remain free pending appearance at an arraignment. The initial appearance usually occurs within 72 hours of the arrest or the first date available if on a weekend or holiday.

What is the Right to Remain Silent?

Just that - an absolute right to remain silent if a person is in custody and is being questioned by police as the suspect of a crime. This is an adversarial setting between the police and the suspect. The police may use various tactics to get a suspect to admit to a crime or make incriminating statements. These tactics may include appealing to a person's guilt or conscience, engaging in ploys like ‘good-cop/bad-cop', lying about the evidence against the person, making promises of leniency or release if the suspect confesses to a crime, or outright intimidation. This is such an inherently coercive setting for a person that the U.S. Supreme Court ordered that the now-famous standard Miranda warnings be read to a person before the questioning process begins. You have the right to remain silent. Everything you say will be used against you. You have the right to a lawyer. If you cannot afford a lawyer, one will be appointed to you.

It seems that, despite the warnings, people often ignore these rights and give incriminating statements to police that they later say are false, inaccurate, or the result of abuse, coercion or intimidation. Also, people often forget that any communication or information given to police is considered a statement, not just a written or signed statement. These statements will be used against a person, just like the warning says. An analogy: If you have a baseball bat, and someone tells you that if you hand him the bat he will hit you over the head with it, would you give that person the bat? Think about the right to remain silent the same way - remain tight-lipped, and ask for a lawyer.

Can the Police Search My Property or Myself?

This is a common question that does not have an easy answer. Bottom line: sometimes they can, sometimes they can't. Generally, a search warrant, supported by probable cause and reviewed and authorized in advance by a magistrate, is required for police to search a person, a person's home, office or car, or a person's private belongings. Probable cause is an amount of evidence that would lead a reasonable person to conclude that a crime has probably been committed or illegal items (contraband) probably exist. However, there are many exceptions to this warrant requirement. The main exceptions are listed below, in order from most common to least common:

• Search After Arrest - Police are authorized to fully search a person and his belongings, and the area surrounding him without a warrant, if that person is legitimately placed under arrest. This search may include full search of a car's interior (not trunk) if the person is arrested in his car.
• Investigative Detention and Frisk - The police may temporarily stop a person and ask questions without a warrant if they have reasonable suspicion to believe that person may be committing a crime. Reasonable suspicion means the police can point to specific observations that would warrant a reasonable person to believe that a crime may be occurring (traffic law violations, violent behavior, threatening behavior, etc.). This detention must be brief, only for the purpose of a brief investigation of whether a crime is indeed occurring. The person is not free to leave, and may be questioned regarding his identity and his purpose. The person may not be placed under arrest or transported to a station unless police are satisfied that probable cause exists to arrest the person. Also, if police have reasonable suspicion to believe that the person being detained is armed, the police can conduct a pat-down frisk of the person's clothing to check for weapons.
• Consent Search - The police can always ask permission to search a person or his stuff without a warrant, and the person is always free consent to a search. Police are often trained or experienced in getting a person to consent to a search even when there is no probable cause or reasonable suspicion to believe a crime has occurred. Part of the right to consent to a search is the right to refuse a search. People often think that they cannot refuse an officer's request to search. If the police ask for permission, they probably need it. If they had a warrant or if a different exception to the warrant requirement existed, they would not ask - they would go ahead and search.
• Plain View - Police are authorized to seize illegal items without a warrant when those items are in the plain view of an officer, and that officer has the legal authority to be where he is. Example: police officer stops a car for speeding and while talking to the driver, he sees a gun in the back seat - he may take the gun without a warrant.
• Emergency Circumstances - Police are authorized to enter areas and conduct a search without a warrant when they have a reasonable belief that such aid is immediately necessary to protect the public from danger.
• Automobile Exception - If the police have probable cause to believe that contraband is in a car, they may search the car without a warrant.

Criminal lawyers are trained to review police/citizen encounters, and reach a conclusion on whether the police violated their authority in an investigation or search and seizure. If the lawyer concludes that police violated their authority, the lawyer can file a motion in court asking the judge for a remedy - dismissal, suppression of evidence, or other remedies authorized by law. Getting answers to the question of whether the police can do what they did do is one reason people seek legal advice.

Can Police officers use Force to Arrest me?

A police officer may use as much force as necessary for a criminal arrest, as long as it is reasonable and lawful. After an arrest is made, a police officer may apply handcuffs to a defendant if the officer thinks that it is necessary to prevent injury or escape. If the defendant claims an unlawful application of force was used by the arresting officer, a judge will hear the defendant's argument and decide whether or not the force used was reasonable for the circumstances.

Will I be Fingerprinted or have to be in a Line-up?

If you are arrested, the police have the right to take your fingerprints and photographs. You may also be required to participate in a line-up, to provide a sample of your handwriting, to speak phrases associated with the offense, and/or to have samples of your hair taken. However, you may insist that an attorney be present during this time.

What is Bail?

Bail is money or other property that is deposited with the court in order to ensure that the person accused returns to court when he or she is required to do so. However, if the defendant does not come to court when required, or violates his or her bail conditions, the bail will be forfeited to the court and will not be returned.

What happens during a Bail Hearing?

Upon arrest, the accused appears before a magistrate or judge for a violation of a criminal law. The magistrate or judge will conduct a pre-trial bail hearing resulting in four possible results:

• Recognizance - This is the defendant's written promise to appear in court on the date set and abide by the terms set by the magistrate or judge. No monetary pledge, cash deposit, or security by property or professional bondsman is required.
• Unsecured Bond - This release, pending court appearance, is based on the defendant's written agreement to appear in court on the date set and abide by the conditions set by the magistrate or judge. It is backed by an agreement by the defendant to forfeit money to the court if she or he does not appear in court on the date set.
• Secured Bond - This is secured by either a cash deposit, a pledge of real or personal property, or a pledge by a third party that the defendant will appear in court on the date set and abide by the conditions of the release. The judge may forfeit any type of security in the event the defendant does not appear in court on the date set.
• Ineligible for Bail - The defendant is denied a release pending court appearance.

The bail decision may be appealed to a judge who will re-examine the evidence. A violation of any agreement of release pending court appearance can result in the issuance of an "Order to Show Cause" why the release should not be revoked.

What happens at an Arraignment?

A suspect has the right to be arraigned without unnecessary delay, usually within two court days, after being arrested. He or she appears before a judge who will read the offenses with which the suspect is officially being charged, they are informed of their constitutional rights, and advised of applicable penalties. At the arraignment, an attorney is appointed in the event of financial hardship, and bail can be raised or lowered. A suspect may also ask to be released on personal recognizance at this time, even if bail was previously set.

If charged with a misdemeanor, a suspect pleads guilty or not guilty at the arraignment. Or, if the court approves, a suspect can plead "nolo contendere," meaning the charges will not be contested. Legally, this is the same as a guilty plea, but it cannot be used against the suspect in a non-criminal case. If misdemeanor charges are not dropped, a trial is held later in court of law. If charged with a felony, however, and the charges are not dismissed, the next step is a preliminary hearing.

If you or someone you know in Orlando, Florida, or within the surrounding areas of Central Florida needs the assistance of an experienced criminal defense lawyer, please contact the Law Offices of David P. Hill today at 1-866-776-4711, or complete the contact form provided on this site to schedule your free initial consultation.