Frequently Asked Questions and Solutions – Criminal
What happens after my arrest?
The paperwork will be filed with the State Attorney’s Office. The State Attorney will then decide whether to go forward with the charges alleged. If they do, you will receive a court date in writing via the mail.
What hearings do I have to attend pending my case?
The court date you receive, either by the officer on scene or by mail, you will have to attend if you have not hired an attorney. You must attend all court dates set unless specified by your attorney that your presence has been waived by the court.
Will my driver license be suspended?
Administrative vs. criminal, Formal Review Hearings, Explanations: There are several complicated issues with your Florida driving privileges. You can lose your license not only for DUI but many other charged offenses by the State. After receiving a citation which suspends your license (ie. DUI), that citation serves as a temporary permit for you to drive for 30 days even though your license has been taken and suspended.
How did my driver license get suspended?
We will set this up in three manners; administrative suspension, criminal suspension, other related offense suspension.
If you took breathlizer and were above .08% alcohol to blood ratio, you are going to lose your driving privileges automatically for six months. If you refuse to take the breathlizer you lose your driving privileges for one year. If you are a .07 suspension after your 30 days of driving on the temporary permit or citation, you will have 30 days “hard time” where you cannot drive at all. The last four months of the suspension is when you can apply for a hardship license (BPO – Business Purposes Only) which allows you to drive for work, doctor’s visits, school, etc. For a refusal you have the same 30 day window to drive, however instead of 30 days “hard time”, you will be unable to drive for 90 days as part of the administrative rulings. The remainder of that year you can apply for a hardship license for work, doctor’s visits, school, etc. The above suspensions are solely administrative, these suspensions have nothing to do with your charged offense of DUI with the clerk of the court.
If convicted of DUI, your license must be suspended per State Statute. The length of the suspension depends on how many prior DUI’s you have been convicted of. This court suspension has nothing to do with the administrative suspensions. The suspension times do not relate back to the arrest, nor do you get credit towards time already served under suspension.
Other related suspension:
If you are found guilty to a drug related offense or controlled substance offense, by law the Division of Highway Safety and Motor Vehicles will suspend you license, even if adjudication is withheld. “Adjudication withheld” means you were not found guilty legally by the court. However. the Florida legislature has passed laws which mandate a license suspension for any drug related or controlled substance offense. You also are entitled to a business restricted license through these suspensions.
What is a Formal Review Hearing? How does it pertain to me?
Aformal review hearing is a hearing with an office of the Administative Office at the Division of Driver License. This hearing gives you the opportunity to contest the administrative suspension of your license. When you have hired an attorney, the attorney goes over the police reports, and if necessary subpoena’s the officers to the hearing to discuss the facts of the arrest. If the officer has made mistakes in filling out the paper work or did not have a legal right to administratively suspend your license, the hearing officer, after it finds ruling in your favor, must give you your license back. The only suspension you then will face is, if convicted, based on suspension of the alleged offense. IMPORTANT REMINDER: you only have 10 days after your arrest to file for a Formal Review Hearing, this is why it is very important to contact an attorney immediately following any arrest.
If my license is suspended, can I get a restricted license or any other license to drive to work or school?
If you breath test was above .08%, after the 30 days of hard time expires you must complete DUI school, which is a 12 hour course by the North Central Florida Safety Counsel regarding drinking and driving. To apply for your BPO license you must show proof of enrollment for DUI school, you need a 30 day traffic record update, which you can get at the clerk’s office at the County Courthouse, a copy of your citation and a copy of your arrest affidavit. If your case was a refusal of the breath test, you may not apply for a BPO license until after the 90 days of “hard time” not driving expires. If you are convicted of other related charges or controlled substance charges the same rules apply. You must complete court ordered or Florida legislative mandated counseling before you can get a BPO license for controlled substance offenses. Note: if you are convicted and a criminal suspension is enforced your prior completion of DUI school remains in effect for your qualifications for a restricted license once on probation, if applicable. You must return to the Division of Motor Vehicle with a Certificate of Completion and renew your BPO license with the DHSMV.
Will I be on Probation? How long? What do I need to know about probation?
The question depends on the charge of the offense you are facing. Some criminal charges such as DUI have mandatory probation, as well as mandatory conditions. Other offenses depends on your prior history as well as the facts of the alleged offense whether the State will ask for probation or not. The length of probation usually will be decided by either any mandatory senteces by the Florida Legislation and the State of Florida or any plea negotiation worked out between the State, your attorney and yourself. ie., one year maximum probation on a first degree misdemeanor, five years maximum probation on a third degree felony, fifteen years maximum probation on a second degree felony. Probation is a very important time after the outcome of your case. If you do not have jail time imposed in your sentence, you will face jail time if you violate the rules of your probation. Probation is when you get everything done that the court has ordered, and should be taken very seriously. This is also a chance for you to expedite your case and get off probation by doing all your court ordered conditions as soon as possible.
Are there any mandatory sentences I need to be aware of? How does my prior record effect my case?
There are several state ordered mandatory, which again depends on the alleged offenses you are facing. For example, if this is a second DUI within five years of a prior conviction, you are facing a minimum mandatory 10 days in the county jail as well as a mandatory five year drivers license suspension. If this was a third DUI arrest within 10 years of a second DUI conviction you are facing a minimum mandatory 30 days in jail and a ten year driver license suspension. Your prior record does effect mandatory sentences set by the State of Florida as well as your driver license privileges. There are also different rules (regarding a BPO license) depending on if your case is a 2nd within 5 or 3rd within 10. Your prior record may effect how the State wants to plea the case, go to trial with the case, or any conditions they demand for a probationary period. For example, if you have several drug related priors and you are arrested for another drug related offense, the State will probably be looking for jail or prison, if applicable, do to your prior chances on probation and still picking up similar charges. This is why your rights need to be protected and to make sure law enforcement has done their job properly.
If I’m on probation, will I have to pick up trash?
Not exactly, you will have to do mandatory community hours if convicted of DUI as well as other offenses. The prosectutor may want communtiy hours as part of your probation as well as any Deferred Prosecution Agreement between the State, your attorney and yourself. This does not mean you necessarily have to pick up trash, but you will have to perform work and service hours with your community to better the community and not receive any monetary benefits from it. Probation officers will usually have a list of service providers where you can do your community hours. Any not-for-profit organizations are usually acceptable as well.
What is the sentence for DUI? What is a “reckless driving”?
The maximum jail is six months for first DUI, nine months for a second DUI and 12 months for a third DUI. A fourth DUI is deemed a third degree felony and the maximum time is five years in state prison. If you are involved in a DUI accident the State can automatically charge you with a first degree misdemeanor, which means even if it is your first DUI, if there was property damage or injuries, you could be facing a maximum of one year county jail. “Reckless driving” is a lesser offense of DUI. When the State either makes a mistake in their case or there is enough mitigating factors the State will offer what is called a reckless driving charge. If offered a rechless driving plea when charged with DUI, you have basically won your case. If the State offers the lesser of reckless driving you do not lose your license, your car is not immobilized, and the probation period, fines and community service hours are lower than what is mandated by DUI probationary periods.
Can I challenge the breath results? Officers? Stop? etc.
Any time your constitutional rights are violated or there is an illegal stop and seizure by the police it can and will be challenged and should be challenged by your attorney. If the court agrees with your version of the events as well as case law provided to the court and the stop is suppressed, the case must be thrown out by the State because the State cannot proceed at trial since the judge suppressed all evidence after the illegal stop. In challenging the officers, again, you can always challenge and unconstitutional act by the State, even with law enforcement officers. Any time a law enforcement officer violates your constitutional right or violates the law and procedures in place, the judge caneither suppress evidence or dismiss the case entirely based on the officers improper action. The breath test results are challenged more frequently than any other due to the maintenance or lack of maintenance, due to breath technician errors, certifications and procedures used on the night you were arrested. If it is a low volume sample or if the State cannot prove the result with scientific reliability, the breath test result can, will and should be challenged at all times. Again if the judge agrees with your facts as well as the case law provided, the judge can suppress the breath test results where they will not be admissible in any trial against you. Therefore, throwing the most damaging part of the States case out and the State cannot use it against you in trial.
Are the statement I said to the officer going to be used against me?
This is a trickier situation since there are several loopholes in the law that officers use. If you are in custody at the time, and the officer does not read you your constitutional Miranda warning, ie., “you have the right to remain silent, anything you say can and will be used against you inn a court of law,..”. If you answer any questions after that point and you waive your Miranda rights, all admissions and atatements will come in unless they are absolutely irrelevant to the case or charges. Even if the officer does not read you Miranda and you decide to voluntarily make statements to the officer of yell things at the officer, these are going to be called “spontaneous statements” under the Florida Evidence Code and they will be admissible in court.
Will they take my car?
If convicted of a DUI they will not take your car unless it is your fourth or subsequent conviction. The Florida legislature has now passed a law where if you are convicted of felony DUI they may seize your car permanently. However, if it is your first, secord or third DUI they will only “immobilize” your vehicle. This would mean on probation you will turn over your registration and license plate for a certain, specified period and therefore you can not drive that car even with a BPO license. However, the legislature has given an exemption for many people if this is the sole car in the household or it would create an economic hardship on the person or family. The court can statutorily waive this requirement of probation. If you are charged with certain drug offenses there are several mandated sentences depending on the charge. And depending on the amount of drugs seized during the arrest. If you are convicted, there are several state statutes which would require the State to possess your car permanently just due to the amounts involved in the case. Again this is going to be fact specific. Your case may or may not apply. This is why you need to contact an attorney immediately and discuss all of your constitutional rights.