At the O’Toole Law Firm we strive to inform each of our clients about their legal rights. Our Florida personal injury lawyers are always willing to answer legal questions and address concerns about personal issues and family matters surrounding their case.
Below are several FAQs to help you gain a general understanding of the process. The questions are grouped into categories depending upon the type of case involved. For the most basic questions, refer to the General FAQ heading.
What are my rights before I am arrested?
You have the right not to incriminate yourself, which is also known as the right to remain silent.
You have the right to be free of “unreasonable search and seizure,” though there are various regulations and exceptions that accompany that right.
You have the right to an attorney. However, that your right to an attorney does not necessarily apply to your decision as to whether to take or refuse a Breathalyzer or blood alcohol test.
You also have the right to be advised by police about these rights, commonly called Miranda Rights.
When can the police conduct a search of my property?
There are rules and regulations that surround police searches. The police can search your home, property, car, or financial records if they have probable cause to believe that they’ll find evidence of a crime, and therefore receive a search warrant issued by a judge.
But in some situations, the police can also conduct a search without a warrant. If, for example, a potential piece of evidence is sitting out in the open, where there is “no reasonable expectation of privacy” then the police aren’t required to have a search warrant to conduct a search. They also don’t need a warrant if you voluntarily agree to a search. Many people have let the police search because they did not know they had the right to refuse. The police are experts at making people consent when they need to be.
When do the police have to read me my rights?
If you are a suspect, the police are required to read you your Miranda rights before conducting a custodial interrogation. What exactly constitutes “custodial interrogation” has been the subject of many court cases, and is more complicated than you might expect. Clearly, not all discussion between the police and a suspect is “interrogation.” Some discussions are different than interrogation, like an officer asking a suspect if he wants something to drink, for example. The police do not need to read a suspect his or her rights at this point. However, in some circumstances a police officer may be found to have interrogated a suspect in custody even without asking direct questions.
Once a custodial interrogation begins, the police must read the suspects his or her rights and ensure that they are understood.
What happens if the police don’t read me my rights?
Many people think that if the police do not read them their rights, the charges are dismissed. This is usually not the case. Instead, if a suspect is interrogated in custody without being read his rights, then any statements he or she makes may be excluded as evidence.
Additionally, any evidence that would not have been discovered without that original statement may not be admissible as evidence either. Sometimes this lack of usable evidence can lead to dismissed charges, but there is no automatic dismissal if a suspect’s rights are not read.
What is the right to a speedy trial?
The 6th Amendment of the U.S. Constitution guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…” But there is not a specific Constitutional guideline to determine what exactly constitutes a speedy trial. Some jurisdictions have established set time periods within which a criminal case must pass through the system. Our Miami, Broward, and Palm Beach county criminal defense attorneys can discuss the time limits that apply to your case.
When do I have the right to a trial by jury?
Any crime that may be punished by imprisonment for more than six months automatically triggers the right to a trial by jury, no matter what the offense is. While there is not a universal definition of the term, those crimes determined to be “petty offenses” do not necessarily warrant a trial by jury. The number of people on the jury can vary also, depending on the state and the seriousness of your crime. Our Miami, Broward, and Palm Beach county criminal defense attorneys can discuss the time limits that apply to your case.
Q. I am a victim of domestic violence and I do not want to press charges, can I have the charges dropped?
A. You can request that the charges be dropped. However, in reality, the prosecution will not drop the charges. Most likely, a victim already gave a statement to the police that caused their spouse to be arrested. If you go back and say the crime never happened, then you could be in trouble for giving a false police report. A prosecutor can force you to testify.
A. Judges are very reluctant to lift a No Contact Order. The reason is because they do no want to be on the news if something bad happens when the Defendant goes back home. A judge is more likely to lift the No Contact Order once a defendant completes at least one-half of the 26 week anger management course.
A. Yes. However, the only way to avoid this is by having your case dismissed or winning your case at trial. Otherwise, you will have to complete the anger management course.
A. The only legal requirement that you have to comply with is a subpoena. The letters received from the State Attorney’s Office are just an informal way to keep you advised. The same with telephone calls. You can ignore both. However, you should never ignore a subpoena. If you do, you could be put in jail.
A. Yes. Typically, the spouse of the defendant contacts our office to hire us. Obviously, we cannot give the victim legal advice or tell them to drop the case. However, we can assist the victim who hires us in contacting the State Attorney’s Office.
A. Our fees start at $750.00 and go up to $3,500.00 depending upon the work involved. We usually charge a flat fee. Most cases can be resolved for $1,500.00. We allow a small payment plan if you can make a down payment.
Q. What is a Formal Review Hearing?
A. If arrested for DUI and you refused to take a breath test or blew over the legal limit, your license will be suspended for a period of time by the Department of Highway Safety and Motor Vehicles (DHSMV). However, you are entitled to challenge this suspension by means of the Formal Review Hearing.
The Formal Review Hearing can be a valuable tool in the investigation and the defense of your case. First, it allows your Attorney to challenge the suspension of your license and, if successful, obtain the reinstatement of your license. Secondly, it permits your Attorney to interrogate the police officers in order to gain detailed knowledge concerning their observations, actions and opinions.
Q.Can I get a hardship license or a temporary driving permit?
A. You are entitled to a Temporary Driving Permit (if you otherwise have a good license) if you request a Formal Review Hearing. Be careful though!
The new DUI law allows you to apply for a hardship license immediately if you waive your rignt to a Formal Review Hearing. This means that you will not have to suffer any “hard time” without license. Remember, this new law only applies to first time offenders.
If you wish to challenge the suspension and have a Formal Review Hearing, then you get a permit and have the hearing.If you are unsuccessful at the hearing, you will lose your license for 6 months, 1 year, or 18 months depending on if you blew or not. Also, you will have to suffer the “hard time” without driving for either 30 or 90 days depending on whether you blew or not.
You will have to attend DUI School to be entitled to hardship license.
Q. If I’m stopped by a police officer and he asks me if I’ve been drinking, what should I say?
A. You are not required to say anything. A polite “I would like to speak with an attorney before I answer any questions” is a good reply. Just remember, anything you say is going to be used against you.
Q. Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?
A. As a general rule, there is no right to an attorney until you have submitted or refused a blood, breath or urine testing.
Q. What should I do if I’m asked to take field sobriety tests?
A. Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any tests or “exercises.” The reality is that officers have usually made up their minds to arrest when they give these tests. The tests are simply additional evidence which the suspect inevitably “fails”. Thus, in most cases a polite refusal may be appropriate. You cannot be punished for refusing these roadside tests or exercises. There is no good reason to take them.
Q. Why did the officer make me follow a penlight with my eyes to the left and right?
A. This is the “horizontal gaze nystagmus” test, a relatively recent development in DUI investigation. The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical term for a distinctive eye oscillation); if this occurs sooner than 45 degrees, it theoretically indicates a blood-alcohol concentration over .05%. The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the type of jerking when the eye is as far to the side as it can go.
This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset. Because of this, and the fact that the test is not accepted by the medical community, it is not admissible as evidence in many states; it continues, however, to be widely used by law enforcement.
Q. Should I agree to take a chemical test? What happens if I don’t?
A. The decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.
If you refuse, your license will be automatically suspended for a period of time. The length of suspension depends on whether it is your first or subsequent refusal to submit to a chemical test. For example, a first refusal results in a 12 month suspension. If you take a chemical test and your blood alcohol level is over .08, this is evidence that will be used against you to prove you were driving under the influence.
Q. Can my case be dismissed if the officer never gave me a “Miranda” warning?
A. No. The officer is supposed to give Miranda warnings after he arrests you. Often, however, they do not. The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.
Q. How do I clear unpaid tickets?
A. Tickets must be paid in the traffic court in the county in which the citation was issued. Some traffic courts allow payment online via credit card. Contact the clerk of court to determine if you can pay your late tickets.
A. If you failed to complete school, your driver license is suspended indefinitely. To get your license cleared, contact the traffic court in the county where the traffic summons was issued and satisfy the traffic summons and present proof of the satisfaction plus a $47.50 reinstatement fee in any Florida driver license office.
Out-of-state residents must send the satisfaction and $47.50 reinstatement fee and a letter of residency to: The Bureau of Driver Improvement, P.O. Box 5775, Tallahassee, Florida 32314-5775. A clearance letter will be mailed to you.
A. The individual must submit a report of eye exam to a Florida Driver License office and may be licensed if minimum vision standards are met. If record states “Inadequate/Field of Vision,” then a vision report including a “Field of Vision Chart” must be mailed to: The Bureau of Driver Improvement Vision Section, 2900 Apalachee Parkway, MS 87, Tallahassee, Florida 32399-0570. The Medical Board will review the chart, advise the department, and the department will advise you.
12 points earned within 12 months results in a 30-day suspension.
18 points earned within 18 months results in a 3-month suspension.
24 points earned within 36 months results in a 12-month suspension.
A. Driver license will be revoked for 5 years. After 1 year from the effective date of revocation, the subject may request a hardship license. Contact the Administrative Reviews Office where you live. Advanced Driver Improvement (ADI) School will be required unless alcohol was involved, then a Driving Under the Influence (DUI) school will be required.
If the HTO revocation has expired, a Florida resident must still obtain authority to restore through the Administrative Reviews Office where you live.
A. This is an indefinite suspension of your driver license. The individual must present an affidavit, Form # DHSMV 73986, from the child support agency, depository or the clerk of the court. The affidavit must be dated within 30 days of the reinstatement to be honored. No exam is required, but a $47.50 fee is required to reinstate the driver license. If the affidavit is dated before the suspension date, then the suspension is deleted and no fee is required.
Write to request Form #DHSMV 73986: The Bureau of Records, 2900 Apalachee Parkway, Rm. B235 – MS 91, Tallahassee, Florida 32399-0570
A. If you hold a Florida license and have received a ticket in another state, they will send Florida the ticket information and it will be added to your record. You will receive points on your license if the ticket is a point-accessible violation according to Florida Statute 322.27(3). Florida law does not allow any school or program to remove points for a ticket received in another state.
Any unpaid ticket reported by another state will result in the suspension of your Florida license. If this has happened you must contact the county where you received the ticket and obtain a receipt with the Court seal. You must present this receipt to DHSMV via fax, mail, or in person at any Florida Driver License Office. There will be a $47.50 reinstatement fee due if the ticket was paid after the Florida suspension date.
Q. Do I have to post the entire amount of the bond in order to get out of jail?
A. No. That is what a bondsman is for. Most bondsmen require 10 percent of the total bond amount as payment, and they will post the rest. They may require certain collateral such as real estate or personal property. You should be aware that you will not get the 10% back. The bondman will keep this amount.
Sometimes, it is better to post the entire bond yourself. At the end of the case, you will get the entire amount back. More importantly, you are not bound by the terms and conditions of your bondsman.
A. Yes. Our attorneys are experienced in getting bond reductions for our clients. A bond hearing or first appearance hearing usually takes place within 24 hours following an arrest. The magistrate presides over first appearance hearings and usually sets a standard bond according to a schedule. Our criminal defense attorneys can appear at this hearing on an emergency basis and request a bond reduction.
Please note that our criminal attorneys can always request the presiding judge for a bond reduction even after the first appearance. A judge looks at an individuals ties to the community, citizenship status, prior criminal history, and ability to pay when setting a bond.
Our skilled defense attorneys can get a judge to agree to a lower bond by setting certain conditions of bond: electronic monitoring, counseling, telephone reporting, etc.
A. There is no magic formula when determining a bond amount. Most of the time the judge will set bond according to the standard bond schedules. However, when a bond reduction is requested, there are several factors that a judge considers: the amount of time someone has lived in the area, personal ties to the community, employment, and prior criminal history.
Q. How is drug court different from regular criminal court?
A. Drug courts combine criminal justice and medical treatment models to deal with drug crimes. They recognize that incarceration may not be the most effective method for breaking the cycle of drug addiction and crime, especially for first-time and low-level offenders. Drug courts emphasize a cooperative approach between the prosecutor, defendant and court, and they favor rehabilitation over jail. Successful completion of drug court programs can result in reduced charges or sentences, or dismissal of charges altogether.
A. The most common challenges in drug cases relate to how the evidence was obtained. If the police violated the defendant’s Fourth Amendment search and seizure rights or Fifth Amendment rights against self-incrimination, the court will suppress the drugs or statements as being unlawfully obtained. Without this evidence, the prosecution may not be able to prove its case beyond a reasonable doubt and the case may be dismissed as a result.
A. Federal and state sentencing guidelines are standards used by the court to determine the punishment for a convicted individual. They have been adopted in an effort to increase consistency in sentencing. The length of a sentence is based on two factors: the severity of the crime and the defendant’s prior criminal history, and the guidelines specify a minimum and maximum range the court can give. In certain circumstances, the judge may depart from the specified range.
A. Forfeiture is the government seizure of property connected to criminal activity. In criminal forfeiture, the government takes property after obtaining a conviction, as part of the defendant’s sentence. In civil forfeiture, a criminal charge or conviction is not needed; the government only needs to show by a preponderance of the evidence that the property was used to facilitate a crime. In theory, criminal forfeiture is a punishment, while civil forfeiture is remedial. Most forfeiture actions are civil.
How long will it take to seal or expunge my record?
The entire process should take about 6-8 months, but there is no set time frame. We try our hardest to complete your case as soon as possible, but the majority of the time delay is the result of the backlog at the FDLE and in the court system. Currently, the FDLE is about 5-6 months behind schedule. Expungement can take 3-6 weeks longer, because the State Attorney must first sign the application for the certificate of eligibility before it is submitted to the FDLE.
What if I was arrested by mistake, can my record be expunged?
Florida allows for an individual who was arrested by mistake (mistaken identity or contrary to law) may apply to have any non-judicial records of an arrest expunged. This would not count as the applicant’s one time sealing or expungement under Florida law. However, this process requires the approval of the chief of the law enforcement agency, sheriff, or department head of the state law enforcement agency to review the record and sign an affidavit admitting the arrest was a mistake or was contrary to law, which can be difficult to obtain.
When must a sealed or expunged record be divulged?
- A law enforcement agency
- The Department of Children and Families
- The Department of Juvenile Justice
- A contractor or licensee dealing with children
- The Department of Education
- Any public school or private school
- The Florida Bar
How many charges can I seal or expunge?
Only charges stemming from one arrest or criminal incident may be sealed or expunged. Multiple charges or arrests stemming from a single arrest/incident may be sealed or expunged if the court orders it.
Can I seal or expunge a charge of Driving under the Influence?
Yes. However, Florida prohibits a withhold of adjudication on DUI charges today, so it is important to verify the outcome of your case. Please note, however, that although a DUI may be sealed or expunged, it may still appear on your driving record.
What if I was a Juvenile when I was arrested?
Most juvenile records are automatically expunged after a certain period of time. Additionally, Florida law provides that an arrest that occurred while an individual was a juvenile may be eligible to apply for a Juvenile Diversion Expunction. See our Juvenile Crimes practice area for more information.
Q. What will happen to me if I commit a new crime while on probation?
A. After your probation officer learns of your arrest, he or she will most likely present a warrant for your arrest to the judge, who will sign the warrant. The police will be notified and may arrive at your home in order to arrest you. Or, if you are stopped by the police for any reason they will immediately transport you to jail because of the existing warrant.
You should hire an experienced probation violation attorney before admitting any violations. Otherwise, you could be admitting to the new crime and helping the prosecutor prove that case. Our criminal defense attorneys can usually resolve both the violation and new crime with a “package deal.”
A. If you violate a term or condition of your probation, the probation officer will request the judge to sign a warrant for your arrest. Most judges will not allow a bond for a violation of probation. This means if you are arrested on that warrant, you will go to jail and will not be able to bond out. If there are special circumstances, we can request that a judge set a bond or allow electronic monitoring as a condition of letting you out of jail while your violation of probation hearing is pending.
In most probation violation cases, we can resolve the violation by admitting the allegations in the warrant and agreeing to time served. Violations such as not reporting to probation may be resolved with little or no jail time. If you commit a new crime or failure a urine test, the judge will require a significant amount of jail time. A dirty urine violation may be able to resolved with a treatment program instead of jail.
A. It depends on the judge. Each judge has different schedules and policies when it comes to setting VOP hearings. Our probation violation attorneys know each judge’s tendencies and policies. We can get a hearing as quickly as the next day. Under certain circumstances, it may take longer depending upon the judge’s schedule. The maximum time to get a probation violation hearing is usually 7 days.
For more information, contact our Florida criminal defense attorneys today. Our DUI, theft, drug, domestic violence, traffic, forfeiture, sex offense, and battery defense lawyers and staff welcome your questions and will take their time answering even the most basic questions so that you feel more comfortable.
Ft. Lauderdale Office
1132 SE Third Avenue
Fort Lauderdale, FL 33316
701 Brickell Avenue Suite #1550
Miami, FL 33131
Boca Raton Office
2385 NW Executive Center Drive
Suite 100 Boca Raton, FL 33431
Toll-Free 24/7: 1-844-49-LEGAL